A Pre-Birth Approval Model for Altruistic Gestational Surrogacy in Irish Law

Jane Brazil

 

I. Introduction

Surrogacy is a method of assisted human reproduction (‘AHR’) by which a person with a womb (the surrogate) agrees to gestate a pregnancy and give birth to a child on behalf of the commissioning parent(s) of the child.[1] A surrogacy arrangement may be either traditional or gestational.[2] In traditional surrogacy, the surrogate is the biological mother of the child and her eggs are used in the pregnancy. In gestational surrogacy, the surrogate has no genetic link to the child and is implanted with the embryo of another couple. A surrogacy arrangement may be commercial or altruistic, and may take place either domestically or internationally.

In Ireland, there is currently no legislation regulating any form of surrogacy arrangement;[3] and while the General Scheme of the Assisted Human Reproduction Bill (‘the 2017 Bill’) was published by the Oireachtas in October 2017, setting out a framework for the regulation of altruistic gestational surrogacy for the first time in Ireland,[4] the enactment of this legislation has been repeatedly delayed.[5] Resultantly, surrogacy arrangements are not illegal – however, they are not enforceable by any court in Ireland.[6]

This article will argue that a legal framework is needed to regulate altruistic gestational surrogacy arrangements in Ireland. Traditional and international surrogacy arrangements are beyond this article’s purview. Legislation will enable the courts to address non-commercial gestational surrogacy arrangements, protect the constitutional rights of those involved in such arrangements, and establish surrogacy as a feasible pathway to parenthood in Ireland. Two models of altruistic gestational surrogacy regulation will be considered: the post-birth parental order model and the pre-birth approval model. It will be argued that the post-birth parental order framework as set out under the 2017 Bill, which determines legal parentage after the birth of the child, should not be adopted in Ireland. Instead, the Oireachtas should provide for a pre-birth approval model, which determines legal parentage before the birth of the child. This model of regulation would protect the interests of the child and balance the rights of the surrogate with those of the commissioning parent(s). 

II. The Prohibition or Regulation of Surrogacy Arrangements

O’Connor notes that ‘surrogacy arrangements do not meet with universal legal acceptance, recognition or approval internationally’.[7] Several European states, such as France, Germany, and Italy, currently prohibit all surrogacy arrangements.[8] This is due to concern that surrogacy commodifies children and exposes surrogate mothers to exploitation.[9] These arguments support the prohibition of commercial surrogacy, whereby the surrogate receives payment from the commissioning couple, and are relevant in considering the prohibition of traditional surrogacy, where the surrogate is the genetic mother of the child.

However, such concerns may not be applicable to altruistic gestational surrogacy. The non-commercial nature of such arrangements protects against fears of child commodification, as the surrogate receives no payment beyond reasonable medical expenses for the pregnancy. The surrogate has no genetic link with the child, minimising the risk of exploitation which may arise where the surrogate uses her own egg in the pregnancy.[10] Further, the regulation of such arrangements may minimise the need for couples to pursue commercial surrogacy outside of Ireland. The reality of surrogacy requires regulation rather than a blanket prohibition; which merely moves arrangements to the black market, or to an international level with a greater risk of exploitation.[11] Legislators must embrace what will continue to be a reality as couples continue to pursue this ‘pathway to parenthood’ both abroad and in Ireland.[12] For these reasons, it is submitted that altruistic gestational surrogacy needs to be regulated by legislation in Ireland, rather than left to operate in a legal lacuna.

i. Empowering Irish Courts in Surrogacy Cases

The inability of Irish courts to address surrogacy arrangements in the absence of legislation was emphasised in the judgements of the Supreme Court in MR v An tÁrd Chláraitheoir [2014].[13] The case concerned the legal maternity of twins born through an altruistic gestational surrogacy arrangement in Ireland. There was no dispute between the genetic mother and the surrogate, who was her sister, as to the legal parentage of the children; however, the State Authorities argued that the birth mother was the legal mother of the twins and prevented the genetic mother from registering her name on the birth certificate. 

The Supreme Court deferred to the policy-making role of the Oireachtas in deciding that the legal mother is the woman who gives birth to the child, as to find otherwise would give rise to ‘unforeseen and unintended consequences’ beyond the facts of the case.[14] Denham J recognised that other countries had passed legislation in response to ‘the slip stream of modern medical developments in [AHR]’.[15] However, these ‘radical scientific developments’ had not yet been addressed in Irish legislation.[16] Hardiman J acknowledged the ‘serious disconnect’ between what medical developments have rendered possible and the state of the law in Ireland.[17] In the absence of legislation, it was not possible for the Supreme Court to address the issues arising from the case.[18] Thus, there is an ‘urgent need’ for legislation so that Irish courts are equipped to decide cases involving altruistic gestational surrogacy arrangements.[19]

ii. Protection of Constitutional Rights

Surrogacy arrangements give rise to ‘complex relationships’ which affect the ‘status and rights of persons’, particularly children.[20] The current absence of legislation has left those involved in surrogacy arrangements ‘in vulnerable legal positions for lengthy periods of time’.[21] It has been noted that the best interests of the child should be a guiding factor in considering how to regulate AHR, especially in determining legal parentage.[22] More broadly, their consideration is constitutionally mandated in family law and child care cases.

A child’s long-term wellbeing is likely to be detrimentally affected where their legal parentage is uncertain.[23] This circumstance affects the ability of a child to register for school, attend a doctor, and acquire a passport, as well as the property and succession rights of the child.[24] As such, the legal status and identity of a child is inextricably linked to their parentage.[25] It is ‘surely most clearly and profoundly wrong’ that the status and identity of a child born through surrogacy should be determined by happenstance in the absence of legislation,[26] especially in altruistic gestational arrangements where the commissioning parent(s) are often the primary caregiver and biological parent(s) of the child. The Oireachtas needs to establish a decision-making framework which provides certainty in determining the legal parentage of the child, to ensure that the rights and status of children born through such arrangements are both respected and protected.[27]

iii. Pathway to Parenthood in Ireland

A legislative framework will provide certainty to commissioning parent(s) who pursue altruistic gestational surrogacy in Ireland. The current position, which defaults to principles of natural parentage in favour of the surrogate, threatens the rights of the commissioning parent(s), making it more likely that they will pursue surrogacy, particularly commercial arrangements, abroad.[28] It should be noted that there is no legally-enforceable system in place in Ireland to deal with issues which may arise from international surrogacy arrangements. Although the Department of Justice issued guidelines on international surrogacy in 2012, they offer little protection to the rights of the children, the commissioning parent(s), or the surrogate.[29] O’Mahony notes that couples will continue to engage in international surrogacy arrangements, no matter what the law is in Ireland.[30] However, it is submitted that commissioning parent(s) will be encouraged to pursue domestic arrangements if sufficient certainty is provided by way of legislation, establishing surrogacy as a feasible pathway to parenthood in Ireland.

III. A Surrogacy Framework for Ireland

This section will consider two possible models of altruistic gestational surrogacy regulation: the post-birth parental order model and the pre-birth approval model. It will be suggested that the post-birth parental order model has shortcomings that may leave the rights of the child and the commissioning parent(s) in a vulnerable position. A pre-birth approval model of surrogacy regulation is better equipped to protect the interests of the child, and balance the rights of the surrogate with those of the commissioning parent(s).  

i. Post-Birth Parental Order Model

The 2017 Bill sets out a framework based on a post-birth parental order model of surrogacy regulation, which recognises the surrogate as the legal mother of the child at birth but allows the court to make a parental order transferring parentage to the commissioning parent(s).[31] The AHR Regulatory Authority would be established, which would pre-approve the surrogacy but not the parentage.[32] The Bill specifies that a child cannot be born using the egg of the surrogate, limiting its scope to gestational rather than traditional surrogacy arrangements.[33] However, it is submitted that certain provisions in the 2017 Bill may present difficulties for the commissioning parent(s) in surrogacy arrangements, leaving the rights of the child in a vulnerable position. 

The post-birth model is designed to protect the surrogate, rather than the commissioning parent(s).[34] It ensures that the surrogate cannot be coerced into transferring legal parentage to the commissioning parent(s) by force or duress. Thus, Head 48 of the Bill states that a parental order may only be made with the consent of the surrogate and where applicable, her husband. Tobin notes that a rationale of protecting the surrogate is more appropriate in the case of traditional surrogacy, where the surrogate is the genetic mother of the child.[35]

Reliance on the consent of the surrogate before making a parental order leaves the rights of the commissioning parent(s) and the child in a precarious position. This is apparent from the English case of Re AB,[36] in which the commissioning parents’ relationship with the surrogate broke down, resulting in the refusal of the surrogate to provide consent for a parental order. The commissioning couple remained the primary caregivers, but not the legal parents of the children. It should be noted that in contrast to UK legislation, Irish courts would have the power to waive the requirement of consent in certain circumstances set out under the 2017 Bill, including ‘for any other reason the court considers to be relevant’.[37] However, it has been argued that this is a ‘broadly drafted provision that leaves far too much judicial discretion in each individual case’.[38] The rights of the commissioning parent(s) and the legal status of the child are still left in a vulnerable position, dependent on the consent of the surrogate and the discretion of the court.

Furthermore, Head 47 sets out that an application for a parental order may be made no earlier than six weeks after the birth of the child, who must be living with the commissioning parent(s) at the time of the application. These requirements leave the caregivers of the child without any parental legal powers, and have been criticised as not being in the best interests of the child.[39] Although the court has the power to extend the application period for a parental order, it has no power to bring it forward.[40] The best interests of the child, rather than protection of the surrogate, should be the primary guiding principle of any proposed gestational surrogacy legislation. Is this achieved by leaving the caregivers of a child born through surrogacy without the legal powers necessary to care for their child? 

An application for a parental order may only be made where the surrogacy agreement has complied with all conditions set out under Head 36, which requires the surrogate to undergo medical and psychological examination and receive counselling and independent legal advice. These provisions are clearly aimed at protecting the surrogate. However, it has been observed that a surrogate who has received counselling and independent legal advice, as well as medical confirmation of the ability to consent, ‘should be able to consent to… legal parentage in favour of the intending parents prior to the birth of the child’.[41] This is especially the case in gestational surrogacy, in which the surrogate has no genetic link with the child.[42] Therefore, surrogate is still presumed to be the legal mother at birth which weighs the balance strongly in their favour, and against the commissioning parent(s); who will have had to overcome ‘medico-legal hurdles’ before applying for a parental order,[43] which is highly unsatisfactory. It should be noted that the harshness of the post-birth model has been mitigated in part by the English courts, who have adopted creative interpretations of the two main pieces of legislation regulating surrogacy.[44] However, considering the deferential tone evident in the judgement of the Supreme Court in MR, it is unlikely that Irish courts would be amenable to such an approach. It is also submitted that such flexibility and discretion would lead to further legal uncertainty, which is ‘very likely to be detrimental to [a] child’s long-term welfare’.[45] 

These observations suggest that the post-birth parental order model creates uncertainty for the commissioning parent(s) and prioritises the interests of the surrogate at the risk of compromising the rights of the child. Hence, it is submitted that legislation should provide for a pre-birth approval model of altruistic gestational surrogacy regulation in Ireland.

ii. Pre-Birth Approval Model

Under the pre-birth approval model of surrogacy regulation, the commissioning parent(s) are recognised as the legal parent(s) of the child from his or her birth. This gives the commissioning parent(s) all the legal powers required to care for their child.[46] It also clarifies the legal position of all parties involved and ensures ‘[the] right of the surrogate child to the legal parentage of both commissioning parents from birth’.[47] The pre-birth approval model currently operates in Greece and South Africa, as well as several US states, including California, New Jersey, and Illinois.[48] 

In South Africa, for instance, the surrogacy agreement must be approved in a similar manner to that which is set out under the 2017 Bill.[49] However, this pre-approval includes the approval of the legal parentage of the child before they are born.[50] In Ireland, the surrogacy and the parentage could be pre-approved by the proposed AHR Regulatory Authority. The success of the Greek model, which is very similar to that of South Africa, is evident from ‘[the] almost complete non-existence of judicial controversies in relation to surrogacy in past years’.[51] Pre-approval minimises the need for judicial discretion, as the rights of the commissioning parent(s) can be secured early in the surrogacy agreement, ensuring certainty and minimising burdensome legal procedures for  the parent(s) and by extension the child at birth.

It may be argued that this model of pre-approval fails to recognise the autonomy of the surrogate, whose interests are offered less protection than under the post-birth Parental Order model. However, a balance may be achieved between the interests of the surrogate and the commissioning parent(s), by recognising the commissioning parent(s) as the legal parent(s) at birth but allowing the surrogate a period in which to object.[52] This would effectively reverse the presumption of legal parentage in favour of the commissioning parent(s); however, it leaves the possibility for the surrogate to object after the birth. This approach was supported by the Law Commission in their 2005 Report on AHR, where it was recommended that ‘the child born through surrogacy should be presumed to be that of the commissioning couple’.[53] The word ‘presumed’ would allow sufficient flexibility for rebuttal in the case of some fundamental change in the arrangement.[54] It is of interest that the Commission noted such a presumption may not be appropriate in the case of traditional surrogacy, where the mother has a genetic link to the child. However, where the surrogate has no genetic link to the child, it is submitted that the presumption of parentage should be based on the intention of the parties at the outset of the arrangement.[55] This pre-birth approval model ensures certainty for the commissioning parent(s) as well as protection for the best interests of the child.

IV. Conclusion

It has been recognised that an ‘absence of legislation does not mean an absence of [surrogacy]; rather it means an absence of regulation’.[56] Therefore, legislation concerning altruistic gestational surrogacy needs to be introduced in Ireland. It is tantamount that any potential legislative framework balances the rights of the surrogate, the commissioning parent(s) and the child. This is not achieved by the proposed post-birth parental order model of surrogacy regulation set out under the 2017 Bill, which arguably facilitates further uncertainty for commissioning parent(s) and threatens the best interests of the child. Instead, the Oireachtas should provide for a pre-birth approval model, which would ensure certainty for the commissioning parent(s), provide strong protection for the best interests of the child, and establish altruistic gestational surrogacy as a viable pathway to parenthood in Ireland.

[1] Jonathan Law, A Dictionary of Law (8th edn, Oxford University Press 2015).

[2] Conor O’Mahony, ‘A Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law’ (Special Rapporteur on Child Protection 2020) <https://assets.gov.ie/130886/e66b52d7-9d3e-4bb4-b35d-cf67f9eea9fa.pdf> accessed 17 October 2021, 4.

[3] Seanad Deb 20 October 2021, vol 279, no 8.

[4] Dáil Deb 30 September 2021, vol 1011, no 7.

[5] Seanad Deb (n 3).

[6] MR & DR (suing by their father and next friend OR) v An tÁrd Chláraitheoir [2014] IESC 60; per Denham J at [105].

[7] Mary O’Connor, ‘Should Surrogacy Agreements Be Enforceable?’ (2020) 23(4) IJFL 94.

[8] O’Mahony (n 2) 6.

[9] Irish Commission on Assisted Human Reproduction, Report of The Commission on Assisted Human Reproduction (2005-77) < http://hdl.handle.net/10147/46684> accessed 21 October 2021.

[10] ibid.

[11] Katarina Trimmings and Paul Beaumont, ‘International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level’ (2011) 7 JPIL 647.

[12] Seanad Deb 15 July 2021, vol 278, no 3 (Mary Seery Kearney).

[13] MR [2013] (n 6).

[14] ibid, Denham J at [27].

[15] ibid, Denham J at [106].

[16] ibid, Denham J at [1].

[17] ibid, Hardiman J at [4].

[18] ibid, Denham J at [117].

[19] ibid, O’Donnell J at [6].

[20] ibid, Denham J at [113].

[21] O’Mahony (n 2) 7.

[22] Lydia Bracken, ‘The Pre-Conception Best Interests Assessment - Part 1: Suitability and Feasibility’ (2019) 22(1) IJFL 16-22.

[23] Re C and D [2015] EWHC 2080 (Fam), Theis J at [14].

[24] MR (n 6), O’Donnell J at [6].

[25] Mennesson v France App no 65192/11 (ECtHR, 26 June 2014).

[26] MR (n 6), O’Donnell J at [6].

[27] Report of the UN Special Rapporteur on the sale and sexual exploitation of children, A/74/162, 15 July 2019 at [20] <https://undocs.org/en/A/74/162> accessed 23 October 2021.

[28] Deirdre Madden, ‘Surrogacy Tourism, Best Interests and Human Rights’ (Surrogacy Conference, NUIG, 12 March 2016) <https://www.youtube.com/watch?v=64NVIUCLEOo> accessed 13 October 2021; Claire O’Connell, “The Aspirational Shortcomings of the Irish Legislative Proposals in Assisted Human Reproduction - Part 2” (2019) 22(1) Irish Journal of Family Law 9-15.

[29] O’Mahony (n 2) 14.

[30] O’Mahony (n 2).

[31] General Scheme of the Assisted Human Reproduction Bill 2017.

[32] ibid, Head 37(2).

[33] ibid, Head 47(4).

[34] O’Mahony (n 2).

[35] Brian Tobin, ‘Too Much, Too Soon: Ireland’s Premier Surrogacy Proposals’ (Surrogacy Conference, NUIG, 12 March 2016) <https://www.youtube.com/watch?v=QpEVAylDxRA> accessed 12 October 2021.

[36] Re AB (Surrogacy: Consent) [2016] EWHC 1594 (Fam).

[37] AHR Bill 2017 (n 32), Head 48(2).

[38] Brian Tobin, ‘The General Scheme of the Assisted Human Reproduction Bill 2017: A Hybrid Model for the Regulation of Surrogacy in Ireland’ (2017) 4 IJFL 85.

[39] O’Mahony (n 2).

[40] AHR Bill 2017 (n 32), Head 47(7).

[41] Tobin (n 39) 84.

[42] Tobin (n 39).

[43] Tobin (n 39) 85.

[44] Deirdre Fottrell, ‘New Dilemmas, New Solutions: A Review of Surrogacy Law in the UK’ (Surrogacy Conference, NUIG, 12 March 2016) <https://www.youtube.com/watch?v=wK_GTz3G9Do> accessed 12 October 2021.

[45] Re C and D (n 23), Theis J at [14].

[46] O’Mahony (n 2).

[47] Mary O’Connor, ‘When is a Mother Not a Mother? The Commissioning Mother of an Irish Surrogate Child’ (2020) 23(1) IJFL 19.

[48] O’Mahony (n 2).

[49] O’Mahony (n 2).

[50] O’Mahony (n 2).

[51] Trimmings and Beaumont (n 11).

[52] Kirsty Horsey, ‘Surrogacy in the UK: Further Evidence for Reform: Second Report of the Surrogacy UK Working Group on Surrogacy Law Reform’ (Surrogacy UK, December 2018) <https://surrogacyuk.org/wp-content/uploads/2018/12/Surrogacy-in-the-UK-2nd-Report-20181230.pdf> accessed at 27 October 2021.

[53] Irish Commission on Assisted Human Reproduction (n 9) 57.

[54] Irish Commission on Assisted Human Reproduction (n 9) 57.

[55] Irish Commission on Assisted Human Reproduction (n 9) 57.

[56] MR (n 6), O’Donnell J at [5].

Leave a Reply