With the draft publication of "The General Scheme of the Assisted Human Reproduction Bill", Ireland is getting closer to clarifying its legal stance on surrogacy in Ireland.
For too long Ireland has been without a legal position on surrogacy, something which has proved frustrating for many couples who would like to realise their dreams of becoming parents and feel that one of the only ways to do this is through a surrogate.
In October 2017, however, an important milestone was met when the Government published (in draft) comprehensive legislation with the Assisted Human Reproduction Bill. As a leading authority in surrogacy cases in Ireland, Poe Kiely Hogan Lanigan was one of a select number of experts asked to comment on the draft legislation.
Having represented many clients on complex surrogacy matters over the years, our firm welcomed the opportunity to review the legalisation and offer our take on what it will mean for the future of surrogacy in Ireland.
Outlined below are some of the main considerations under the proposed new legislation. We are not convinced that the approach set out in the current draft legislation is optimal, but we do see clarifications of the legal position as a very worthwhile goal.
1. The Surrogate
The surrogate must be habitually resident in Ireland, have previously given birth to a child and be aged 25 and 47 years of age. Prior to the application for authorisation from the Regulatory Authority the surrogate must have been assessed and approved as suitable to act as a surrogate by a doctor and counsellor.
2. The Intended Parents
There can be one or two intended parents who must be habitually resident in Ireland, aged between 21 and 47 years of age, who are either unable to gestate a pregnancy, unable to conceive a child for medical reasons, unlikely to survive a pregnancy or give birth and include a woman who is likely to have her health significantly affected by a pregnancy or by giving birth.
3. Reasonable Expenses
Commercial surrogacy agreements will be prohibited under the Bill although reasonable expenses will be permitted when the agreement was made prior to the transfer of the embryo to the surrogate.
4. Independent Legal Advice and Counselling
The surrogate mother and each intended parent will be required to receive counselling and independent legal advice at each stage of the surrogacy agreement.
5. Parental Order
An application can be made to the Court for a Parental Order no earlier than 6 weeks and no later than 6 months after the birth of the child. At the time of the application to the Court the home of the child must be with the intended parents. The application must also be accompanied by evidence that at least one of the intended parents provided a gamete used for the child’s conception and the surrogates egg was not involved. The Court will require the surrogate (and her husband if she is married) to consent to the granting of the Parental Order unless the surrogate is deceased, hasn’t the capacity to consent, can’t be located and any other reason the Court considers relevant. The Court will grant a Parental Order once it is satisfied the child becomes the child of each intended parent. The surrogate will be the legal mother of any child she gives birth to under a surrogacy agreement until the Parental Order is granted.
The Bill is lengthy and involves many social, legal and ethical issues and whilst it is a welcome step in the right direction it appears to only deal with surrogacy arrangements within Ireland and will seek to prohibit all other forms of surrogacy which do not comply with the requirements outlined in the Bill.
International surrogacy is not specifically mentioned in the Bill, however, it does look as if access will be limited when it passes into law as people will be prohibited from giving advice or information about international surrogacy to Irish couples. In addition to this, the new Parental Order will only recognise the parent/ child relationship for Irish surrogates and not those born through international surrogacy arrangements. This omission is an interesting position for the Bill to take given that Irish surrogacy arrangements are quite rare when compared to the much more sought after international surrogacy.
There is no doubt the draft Assisted Human Reproduction Bill 2017 is a significant step forward for Ireland and should be welcomed, however, we hope that the position on international surrogacy is modified at some point in the not too distant future. Poe Kiely Hogan Lanigan will be closely following the Bill’s progress as it makes its way through the Oireachtas and becomes enacted into Irish Law.
If you would like to speak to one of our dedicated Surrogacy lawyers, please contact Poe Kiely Hogan Lanigan or alternatively you may wish to download a copy of our free guide "Surrogacy: A Route To Parenthood In Ireland" by click on the link below.