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In Ireland, AHR remedies have become significantly more common for same sex couples and couples who experience difficulties trying to conceive: Law Research Paper, UCC, Ireland

University University College Cork (UCC)
Subject Law

Introduction

In Ireland, AHR remedies have become significantly more common for same sex couples and couples who experience difficulties trying to conceive, with approximately 1 in six Irish couples believed to be infertile.[1] The absence of surrogacy law in Ireland adds to the hardship and confusion experienced by potential parents and although draft law regulating the region has been suggested, it is unlikely to be passed in the foreseeable future.

The proposed Assisted Human Reproduction Bill 2017 has been developed, and if passed in its present form, it would apply only to domestic altruistic surrogacy, not to overseas agreements. Additionally, it will govern surrogacy agreements that take place once the Act is approved.

These limitations deny many heterosexual and same sex couples who avail of surrogacy outside Ireland a legal claim to their biological children. Ireland’s submission to the Hague Conference on Private International Law states that between 2009 and 2013, state officials dealt with 34 international surrogacy agreements.

This independent study considers the ways in which reform is necessary for the parentage legal rights for Irish citizens who need to avail of surrogacy outside the State. It aims to look at the way Ireland needs reform in order to protect and support modern families of international surrogacy and retrospective pathways to parenthood. Changes that could be made to the Children and Family Relationships Act 2015 and the Assisted Human Reproduction Bill are needed now more than ever especially since the same-sex marriage referendum in 2015.

The state is oblivious to the many aspects of parenting. Birth certificates should at the very least record ‘parents,’ and the definition of’mother’ should be changed to reflect this. As family structures evolve, so does Irish law. Researchers from the ESRI in UCD have stated that one third of Irish families are outside the structure of a traditional family consisting of a married couple both of whom are in their first marriage and this study emphasizes the importance of the law supporting families of all kinds and structures in todays society.

Currently enacted legislation (and the planned General Scheme) precludes Irish people from obtaining services on a national level, forcing them to seek help abroad. Irish citizens have sought surrogacy services in the United Kingdom, Ukraine, and the United States (among other countries), and will have no other choice but to continue do so in the future if legislation does not change.

Current Legislation

The Children and Family Relationships Act 2015 was brought in to regulate AHR and to enable a donor-conceived child, born through assisted reproduction, to trace his/her identity.[2] The objective of this 2015 Act is to change family law in a manner which is inclusive of and sensitive to modern family life in Ireland. It makes an effort to more accurately represent this reality by addressing the requirements of children from a variety of family structures with parts 2 and 3 specifically governing the regulation of DAHR (donor assisted human reproduction) in Ireland.

The Children and Family Relationships Act signed legislation last May that states if a child is born through assisted reproduction, both parents can now be on the birth certificate however this only applies to conceptions through an Irish clinic with traceable donors and the children must be born in Ireland. Despite the proposed framework governing donor-assisted human reproduction[3], surrogacy remains entirely unregulated in Irish law. The 2015 Act contains provisions relating to donor-assisted human reproduction; however, these do not stretch so far as to regulate surrogacy. Section 5(5) and section 5(6) of the 2015 Act provide protection for intended parents by declaring that gamete or embryo donors are ‘not the parent of a child born’ and ‘have no parental rights or obligations in relation to the child.’ Section 7 prohibits anonymous contributions, and section 19 prohibits financial remuneration in excess of reasonable costs incurred in connection with DAHR.

These regulations seem to promote a transparent and legitimate framework for individuals seeking DAHR proceedings however, these rules are in fact preventing the future use of commercialized or anonymously given gametes/embryos, which is the more common form of treatment by Irish parents. Ireland has the second-highest rate of surrogacy usage in the world with 68% of surrogacies carried out for Irish couples took place in Ukraine[4].

Ireland’s refusal to regulate surrogacy has had a severe impact on Irish families that have used domestic and foreign surrogacy agreements. Children and parents have been put in precarious legal situations for extended periods of time as a result of the Oireachtas’ reluctance to pass legislation addressing their situation. The challenges that can and will continue to rise without proper legislation were shown in the landmark case of MR and DR v An t-Ard Chláraitheoir[5].

This case concerned an Irish couple in which the intended mother was unable to conceive and therefore her sister acted as a gestational surrogate to an embryo formed by her and her husband. Following a successful surrogacy, the baby was delivered by the surrogate(sister) to the intended parents as planned however they could not register the baby as such. Irish legislation prohibits anyone who is not the birth mother from being the child’s legal parent, in this case, that was the sister.

The couple brought this to the High Court, which sided with the commissioning couple based on genetic parenthood. The state challenged the ruling to the Supreme Court, which decided against the commissioning couple on the grounds that the birth mother had an unrebuttable presumption. The Supreme Court stated that it was not in a position to enact surrogacy legislation as that was a subject for the Oireachtas to address.

Minister for Health Stephen Donnelly[6] has said that ‘a law on assisted human reproduction (AHR) is now being written. The bill establishes a court-based procedure for transferring the paternity of a child born via surrogacy from the surrogate to the intended father (s).

The law details the particular criteria under which surrogacy would be authorized in Ireland, including a requirement that all surrogacy arrangements be altruistic and pre-approved by the new AHR Regulatory Authority. Additionally, the surrogacy regulations require that at least one of the intended parents be genetically linked to the child’.

Despite this statement, regulation is still not in place and although it is understandable this is something the government will need to get right on every level in order to be fit for purpose, this is now a matter of urgency and something needs to be done.

The complexities of international surrogacy are mirrored in the Irish government’s difficulties in regulating an activity that happens outside of the state. There is minimal worldwide agreement on surrogacy’s legal status and international surrogacy is not only an Irish phenonom, but a global one too.

Surrogacy

Surrogacy is defined as the procedure or arrangement of someone giving birth for another person and this process is becoming increasingly more popular across the nation as the years go on. Surrogacy is often a last option for intending families for many reasons however infertility is the most common factor.The census report in 2016[7] provided figures outlining that fertility born to women of childbearing age (15-44) had dropped from 2.55 to 2.33 between 2011-2016. Surrogacy is a lengthy procedure that demands medical and legal knowledge, as well as a robust support system throughout.

Those considering surrogacy in order to conceive a child are often referred to as Intended Parents (IPs for short). ‘Surrogacy is a method of assisted reproduction where intended parents work with a gestational surrogate who will carry and care for their baby(ies) until birth. Intended parents use surrogacy to start or grow their families when they can’t do so on their own’.[8] Surrogacy may only take one of two forms; 1) traditional and 2) gestational. In a traditional surrogacy arrangement, D. Pergament[9]

defines a traditional surrogacy to be when ‘the surrogate is the child’s genetic mother as she agreed to conceive through AI and deliver a child for the intended parents’. Further to this, Pergament defines gestational surrogacy as when ‘an embryo is transferred to a woman who has agreed to carry the pregnancy and deliver the child. The embryo may have been created from sperm and/or oocytes from the intended parents or donor gametes’.

The number of international surrogacy arrangements is growing at a rapid pace and current legislation or the lack of, is not sufficient in most jurisdictions especially Ireland as this paper will reflect. Information provided to the Hague Conference on Private International Law[10] showed that 34 children were born through international surrogacy arrangements between 2009 and 2013 and since then figures from the Department of Foreign Affairs in 2018 show that almost 160 children born through surrogacy outside Ireland have returned on emergency travel documents in the past decade, 23 of which from Ukraine alone.

Citizenship/ Parentage

A child born via international overseas surrogacy may return to Ireland if the Irish Government successfully issues an Emergency Travel Certificate (ETC). The application may be made by the child’s father or guardian. To apply, the commissioning father must undergo DNA testing at a facility recognized by the Irish authorities and give a report proving paternity. In the absence of a declaration of paternity, the surrogate mother must apply for the ETC. If she is married, her husband’s agreement must also be acquired. Legal proceedings for a declaration of parentage from the Irish Courts must be issued within 10 days of returning to Ireland. When a child is born to international surrogacy, issues can arise to their nationality and citizenship.

A child will only have Irish citizenship if they are born to an Irish parent and it will need to be established who the parents and guardians are in order to obtain a travel document so that the child can return home to Ireland. The Irish authorities are required to apply Irish law. It should be noted that foreign birth certificates or court orders are not necessarily binding in Irish law or upon Irish authorities.

Several problems can arise here and there are often times babes are born stateless with the lack of proper or any provision The Irish authorities can give no guarantees that a child will be automatically regarded as an Irish citizen, that the commissioning adults will be regarded as parents or guardians of that child and therefore that a passport or other travel document can be provided for that child.

The Hague Conference on Private International Law has described legal parentage as the ‘the gateway for children through which many legal rights and obligations flow’. The legal parentage of children born in Ireland pursuant to surrogacy arrangements is determined by Parts 2 and 3 of the Children and Family Relationships Act 2015[11].

The current surrogacy laws provide a court-based process for transferring paternity of a child born via surrogacy from the surrogate (and, if appropriate, her husband) to the intended parent (s). For the first two years of the child’s life, their mother will have no legal relationship with them and can only apply for guardianship after this time has passed, which only lasts until the child turns 18. These mothers can attempt to gain legal rights to their children by way of adoption, however no Irish family has ever been successful.

A spotlight report by the Oireachatas Library and Research Committee[12] discussed the issues pf parentage and considered the Irish complexities following the case of MR V DR. The principle of mater semper certa est[13] would have always applied in determining parentage and the same general rules would extend in the event of surrogacies too.

‘The fact that a genetic relationship exists between a commissioning adult and the child does not mean that he or she is automatically the legal parent of the child under Irish law. Under Irish law the woman who gives birth to the child – the surrogate mother – is the legal mother of the child, even if the ovum from which the child was produced was provided by one of the commissioning adults, or by a donor.’[14]

While the birth mother is recognized as the legal mother – in international cases she is often a non-Irish citizen, and hence citizenship is normally obtained via the child’s father — entitlement to Irish citizenship for a child born outside the State is based on Irish parentage.

A genetic link to the intended father (an Irish citizen) established through DNA testing enables the child to travel to Ireland on the condition that he undertakes to regularize the child’s situation through court applications for declarations of parentage and guardianship in accordance with domestic law.

Best Interests of Child

At the heart of all surrogacy arrangements are the children involved and their best interests need to be provided first and foremost. Without legislation, children born by international surrogacy willcontinue to be legally vulnerable, having a legal parental connection with just one of their parents even after their court application.

The term “best interests” or “best interests of the child” refers to a child rights principle derived from Article 3 of the United Nations Convention on the Rights of the Child, which states that “in all actions involving children, whether by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the child’s best interests shall take precedence.”[15] The best interest for the child is provided for through Irish and International law however neither the United Nations nor the European Court of Human Rights have mandated that national law must permit domestic surrogacy arrangements; rather, in recognition of the diversity of approaches across jurisdictions, it has been held that States have the discretion to regulate or prohibit domestic surrogacy.

International human rights organizations and academic experts have emphasized the danger that some kinds of surrogacy may amount to child sale and the need of states taking action to prevent this from occurring.[16] J. Tobin seeks to find a balace in identifying the competing rights for chidlren between their relationship rights, identity and cultural rights, developmental rights and protection rights when establishing protection under surrogacy arrangements.

While the ECHR does not expressly safeguard the right to identity, it has been recognized as a component of the child’s right to private life under Article 8 of the ECHR in a series of ECtHR judgements. In Irish law, the Supreme Court recognized the right to identity as a personal right guaranteed by Article 40.3 of the Constitution in IO’T v B[18] . The Children and Family Relationships Act 2015 safeguards children born as a consequence of a DAHR procedure’s right to identification by forbidding anonymous gamete donation.[i]

Ethical Concerns

Many families and specifically the potential surrogate mothers and babies are at a very high risk of exploitation without proper protection by law, and it is becuase of this many countries including Ireland have prohibited international surrogacy entirely. Without a legal approach that is fit for purpose, many surrogates are pressured into or enticed into the role without proper contracts, protection or knowledge of any complications it may entail.

It is beyond the scope of this article to examine the ethical issues that surround the existence and functioning of international surrogacy partnerships. The commercial surrogacy industry is estimated at $2.3billion dollars annually[19] and without legislating this properly at a national and international level, too many people are getting and will continue to be exploited.

While the emphasis has been on commercial surrogacy’s potential for exploitation, issues have also been raised about altruistic surrogacy, including the possibility of moral compulsion of surrogate mothers. Surrogacy also poses significant child protection concerns, including the right to be protected from abuse and trafficking, the right to have his or her best interests prioritized in all activities affecting him or her, the right to know their identity, and the right to have parents and a state.

Comparative Look at Other Jurisdictions

The complexities of international surrogacy are mirrored in the Irish government’s difficulties in regulating an activity that happens outside of the state. There is minimal worldwide agreement on surrogacy’s legal status. The laws vary per nation.

As a result, it is important to do study on the surrogacy laws in each nation prior to beginning the procedure. The Justice Department has released rules on overseas surrogacy partnerships. While they are an excellent resource for prospective parents, they are merely a description of the existing system and not a legally enforced set of laws. Given the lack of Irish legislation and case law governing surrogacy, it is instructive to examine the jurisdictional tactics used by persuasive authorities in other jurisdictions.

Although several jurisdictions have created legal precedent on surrogacy concerns by way of legislative or judicial action, every society and state has a different viewon the ethical questions surroundng surrogacy and so it is necessary to understand the contrasting difference between states in order to evaluate what recommendations could be made for Irish legislature.

Ukraine

Ukraine is a prominent destination for surrogacy contracts from an Irish perspective. Ukraine recognizes the Irish parents as legal parents from the time the kid is born. Ukraine also allows for commercial surrogacy. The Ukraine, on the other hand, is exclusively offered to married heterosexual couples who have medical confirmation that they are unable to conceive.The intended parents must demonstrate a medical need for surrogacy. The cost of surrogacy arrangements in Ukraine is significantly lower than other jurisdictions and this is why it is among the most popular for Irish families[20].

The surrogacy arrangements in Ukraine is often criticized as although the price point is lower, the risk of being exploited is higher. In order for the intending parents to be registered as the parents in Ukraine, the law states that they must provide the Ukrainian register office with a certificate proving that the baby’s genetic materials come from at least one of the intended parents[21]. Prior to entering into an international surrogacy agreement, most couples get little to no legal guidance and run into difficulty once returning home to Ireland.

United Kingdom

The United Kingdom is now updating its surrogacy rules, and the UK Legislation Commission recently produced a consultation paper titled Building Families through Surrogacy: A New Law[22]. They are also working with legislative drafters to prepare a draft Bill amending several aspects of surrogacy law. 71 This draft Bill is scheduled to be introduced in early 2022.

Parentage designation from birth and the elimination of the requirement for a genetic link in certain circumstances are not included in the Irish General Scheme, but it will be interesting to see whether Ireland looks to the UK’s proposals in the later stages of the legislative process when reforming its surrogacy laws.

Recommendations for Change

In light of the issues raised throughout this report there are several recommendations I feel are necessary in order to protect and safeguard parents and children availing of international surrogacy:

  1. Provision should be provided to enable intended parents in foreign surrogacy agreements to submit information to the National Surrogacy Register about the child’s genetic origins. Where this does not occur, the law should provide that intended parents may be given guardianship but not full parenthood.
  2. The Children and Family Relationships Act 2015 should be amended to make provision for parents of children born through international surrogacy to apply to the District Court at any time after the birth of the child for either parentage or guardianship.
  3. Future surrogacy law should provide for any measures accessing to legal counsel.
  4. The courts should allow for parentage to be granted to all parents irrespective of whether they carried the child themselves under the same criteria
  5. Legislation should make provision for the High Court upon the application of the intending parents, to grant a parental order to the intending parents, and nationality and citizenship to the child

Conclusion

The absence of legislation towards international surrogacies in Ireland adds to the hardship and confusion experienced by potential parents. Legal recognition to parents and children of international surrogacy, and for the important role in modern society is needed, and also very welcomed in a modern day Ireland. Unless and until the law is changed, children will continue to be born via international surrogacy agreements and cared for by parents who will have no legal relationship to their own children.

Without reform in Irish legislation issues will continue to rise in regarding consent in procedures, passports for children, iinheritaance rights and tax complications etc. The current planned legislation in the AHR Bill is attracting much criticism as it will not change the legal status for parents who choose international surrogacy and the legal quaqmire for parentage will still exist.

Inn line with the with the Marriage Equality Act and repealing the 8th amenment, Ireland has an apportunity to make reform for the society we live in now and not provide for an outdated persective on families.

Legislation on the use of assisted reproductive technology in internationally and nationally will be another opportunity for political acknowledgement of Ireland’s new social reality. his contract-based approach combined with a respect for Constitutional family rights may be regarded as a successful contribution to surrogacy arrangements here.

BIBLIOGRAPHY

  • The Department of Health. General scheme of the Assisted Human Reproduction Bill 2017
  • ‘Building Irish families through surrogacy: medical and judicial issues for the advanced reproductive technologies’
  • ‘Babies, Borders and Big Business’, Reproductive Health Matters
  • The Irish Medical Council (2016) Guide to Professional Conduct and Ethics for Registered Medical Practitioners 8th Edition
  • Enduring politics: the culture of obstacles in legislating for assisted reproduction technologies in Ireland- Jill Allison
  • European Court of Human Rights. European Convention on Human Rights. Council of Europe
  • Building Families Through Surrogcay: A New Law
  • Legislation of Ukraine, IRTSA
  • Selling a Miracle? Surrogacy Through International Borders – Kirshner
  • Transnational Surrogacy, Human Rights and the Politics of Reproduction – Miranda Davies, The Reproductive Health Matters(RHM)
  • To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?
  • Committee on the Rights of the Child – United Nations Convention on the Rights of a Child
  • Surrogacy, parentage, and citizenship: Ireland in the wider world – Oireachtas Library and Research Committee
  • Children and Family Relationships Act 2015
  • Questionnaire on the Private International Law Issues Surrounding the Status of Children, including Issues Arising from International Surrogacy Arrangements
  • Census of Population 2016 – Profile 4 Households and Families – Central Statistics Office Ireland
  • Encyclopedia of Biomedical Engineerin
  • Law Society Gazette

[1] Department of Health, Report of The Commission on Assisted Human Reproduction (Department of Health, 2005)

[2]Children and Family Relationships Act 2015

[3] Section 2 & 3 Children and Family Relationships Act 2015 – Irish Statute Book

[4] Families Through Surrogacy (FTS)

[5] MR v DR [2016] IEHC 459

[6] Law Society Gazette – lawsociety.ie

[7]Census of Population 2016 – Profile 4 Households and Families – Central Statistics Office Ireland

[8] Circle Surrogacy – www.circlesurrogacy.com

[9] D. Pergament, Encyclopedia of Biomedical Engineering – Volume 1

[10] Questionnaire on the Private International Law Issues Surrounding the Status of Children, including Issues Arising from International Surrogacy Arrangements (Ireland)

[11] Children and Family Relationships Act 2015 (Parts 2 and 3) (Commencement) Order 2019

[12] Surrogacy, parentage, and citizenship: Ireland in the wider world – Oireachtas Library and Research Committe

[13] The birth mother is always certain

[15] Committee on the Rights of the Child – United Nations Convention on the Rights of a Child

[17] To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?

[18] 5 [1998] 2 IR 321

[19] Transnational Surrogacy, Human Rights and the Politics of Reproduction – Miranda Davies, The Reproductive Health Matters(RHM)

[20] Selling a Miracle? Surrogacy Through International Borders – Kirshner

[21] Legislation of Ukraine, IRTSA, http://www.irtsa.com.ua/en/legislation/ukraine.html

[22] Building Families Through Surrogacy: A New Law – UK Law Commission

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