The Health (Assisted Human Reproduction) Bill 2022 was published in March 2022, and is currently being considered by the Irish Parliament. Part seven provides for the regulation of altruistic, domestic surrogacy arrangements. However, it does little to encourage intended parents to enter into such arrangements, because it proposes a complex, hybrid pre and post-birth model for regulating domestic surrogacy.
The Bill provides for the setting up of an Assisted Human Reproduction Regulatory Authority (AHRRA) that must, among its many functions, approve the parties' surrogacy agreement before any treatment in a clinic will be permitted. However, despite all parties having received implications counselling and independent legal advice regarding the agreement by this time, the AHRRA's pre-conception 'approval' of their agreement will be limited to the approval of treatment, not legal parentage of the surrogate-born child.
The Bill provides that the gestational surrogate will be the child's legal mother at birth (the Bill only proposes to regulate gestational surrogacy). The intended parents can only apply to the court seeking a parental order transferring legal parentage from the surrogate a minimum of 28 days after the birth of the child. The surrogate must consent to this transfer of parental rights or she will remain the child's legal mother, and there appears to be nothing that the intended parents can do about this. Part seven makes it clear that the surrogate's consent can only be dispensed with by the court if she is either deceased or cannot be located.
This requirement around consent is a retrograde step when compared to the original draft of the Bill that was published as far back as 2017. In the General Scheme of the Assisted Human Reproduction Bill 2017, it was provided that the court could waive the requirement for the surrogate's consent to a parental order 'for any other reason the court considers to be relevant' which, if it had been retained in the current Bill, would at least have offered a potential life-line to intended parents who might find themselves in a predicament where the surrogate refuses to consent to a parental order. Indeed, one wonders whether this provision was intentionally removed from the Bill to make domestic surrogacy as perilous an undertaking as possible for Irish intended parents.
The Bill was drafted by the Department of Health and, as regards surrogacy, little has changed from the provisions in the General Scheme in 2017. This is surprising when one considers developments that took place in the interim period between the General Scheme and the Bill. In 2019, the two Law Commissions in the UK published a Consultation Paper proposing a move away from the 'Post-Birth Parental Order' model for regulating domestic surrogacy arrangements in that jurisdiction to a 'Pre-Conception Approval' model for determining legal parentage in favour of intended parents at birth.
However, it is clear from the above discussion that the post-birth aspects of the regulatory model proposed in the Irish Bill mirror unsatisfactory aspects of the current UK model, particularly in the area of post-birth consent. In 2020, Professor Conor O'Mahony, Ireland's special rapporteur on child protection, submitted 'A Review of Children's Rights and Best Interests in the context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law', which also proposed a pre-conception approval model for determining legal parentage in cases of domestic surrogacy in Ireland.
It is worth noting that a pre-conception model for approving legal parentage of the surrogate-born child in favour of the intended parents might not only encourage them to avail of domestic surrogacy rather than going abroad, but it would also establish the child's right to family life with its intended parents immediately at birth. Further, this would not conflict with the surrogate's right to manage her pregnancy the same as any other woman because legal parentage would only arise in favour of the intended parents by operation of law at birth.
Nonetheless, the Bill does not allow for this approach – intended parents will have to soldier on after their agreement is approved by the AHRRA in the hope that the surrogate will be willing to consent to the transfer of legal parentage to them by a court after she gives birth. While evidence indicates that the vast majority of surrogates do not view themselves as the mother of the child they have gestated for the intended parents, this is likely to be of little comfort to intended parents when deciding whether or not to embark on a pathway to parenting that involves substantial emotional investment, some financial investment, various pre and post-birth legal and administrative processes, and a degree of risk regarding the ultimate legal parentage of the surrogate-born child.
It is unclear why the State is wedded to the post-birth parental order model for regulating legal parentage in the context of domestic surrogacy. It is certainly not required by the Constitution or case law from the Irish superior courts, because in 2014 the Supreme Court made it clear that the regulation of surrogacy arrangements is a complex matter of social and public policy to be dealt with by the Irish Parliament, and that the principle of 'mater semper certa est (motherhood is certain)' is not part of the common law of Ireland.
Nonetheless, it is possible that a further, significant development influenced the State's decision – the report of the United Nations (UN) 'Special Rapporteur on the sale and sexual exploitation of children'. In her report in 2018, the then UN Special Rapporteur advised nations that 'to prevent the sale of children in the context of altruistic surrogacy' and avoid a breach of the UN Convention on the Rights of the Child 'Optional Protocol on the sale of children, child prostitution and child pornography', the surrogate must 'retain parentage and parental responsibility at birth', and be under no legal obligation to transfer the child.
According to the UN Special Rapporteur, the surrogate's choice after the birth to transfer the child to the intending parents must be a gratuitous act, based on her own post-birth intentions, rather than on any legal or contractual obligation. Indeed, this might be the reason the Bill provides that the surrogate's post-birth consent can only be dispensed with by a court in the two abovementioned, extreme circumstances. If so, then the Bill is according too much weight to international law to the detriment of the constitutional rights of the child.
Indeed, Ireland has not yet even ratified the Optional Protocol on the sale of children, child prostitution and child pornography. However, children's rights are expressly protected in Article 42A of the Irish Constitution. Thus, it is imperative that a child-centred reason for waiving the need for the surrogate's consent to a parental order should be provided in the Bill.
In the context of an adoption, Section 31 of the Adoption Act 2010, as amended, allows the High Court to dispense with the need for the natural mother's consent where she fails, neglects or refuses to give her consent to the making of an adoption order. However, before doing so the High Court must have regard to 'the rights, whether under the Constitution or otherwise, of the persons concerned (including the natural and imprescriptible rights of the child)' under Article 42A.
One such 'natural and imprescriptible' constitutional right of a surrogate-born child might surely be a right to the enjoyment of family life with its intended parents, at least one of whom will be genetically related to the child according to the Bill, and both of whom are responsible for its birth by initiating the surrogacy arrangement? If legislation can allow a natural mother's consent to an adoption to be dispensed with in the manner above, surely it should similarly allow a gestational surrogate's consent to possibly be dispensed with on the same grounds?
In its current form, the approach to domestic surrogacy in the Health (Assisted Human Reproduction) Bill 2022 is restrictive and risk-laden, and thus unlikely to encourage many intended parents to avail themselves of surrogacy in Ireland. Many will most likely continue to go to commercial surrogacy jurisdictions where their legal parentage can be recognised at birth. In that regard, it should be noted that while the Bill contains no provisions on recognising the parentage of children born via international surrogacy, a parliamentary committee is currently exploring options for legislating in this area.