Government Approves Policy Proposals on International Surrogacy

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Health Minister, Stephen Donnelly, together with Justice Minister, Heather Humphreys and the Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman, have  received Government approval for policy and legislative proposals on international surrogacy and the recognition of certain past surrogacy arrangements.

The intention is that once drafted, the finalised new legislative provisions in respect of international surrogacy and past surrogacy arrangements – which will need to be further approved by Government – will be inserted into the Health (Assisted Human Reproduction) Bill 2022 Bill at Committee Stage.

The government decision followed the establishment by Minister Donnelly, Minister O’Gorman and Minister Helen McEntee of an Inter-Departmental Group to develop legislative amendments following the Joint Oireachtas Committee on International Surrogacy, which reported in the summer.

Key principles underpinning the Government’s proposals are the protection of the rights of all children born as a result of surrogacy arrangements and the safeguarding of the welfare of surrogate mothers.

Minister Donnelly said, “The policy and draft outline legislative proposals approved by Government have the potential to provide hundreds of Irish families with a route to formal recognition by the State of the surrogacy arrangements they have undertaken, or will undertake, in other jurisdictions.

“We have endeavoured to implement, in so far as possible and appropriate, the proposals of the Special Joint Oireachtas Committee on International Surrogacy and have accepted the majority of the Committee’s recommendations.”

The Department of Health said that in developing the policy and legislative proposals, a central consideration was ensuring close alignment and consistency with the provisions relating to domestic surrogacy within the published Health (Assisted Human Reproduction) Bill 2022 (“the AHR Bill”), as well as providing for additional safeguards and procedures, in recognition of the additional legal, ethical, policy and procedural complexities of international surrogacy.

The policy approach approved by Government proposes that:

  • A two-step process will be introduced to allow for the recognition of parentage in future international surrogacy arrangements, encompassing pre-conception approval by the Assisted Human Reproduction Authority (AHRRA) and a post-birth court process for the granting of a Parental Order for Surrogacy.
  • Furthermore, persons seeking to undertake international surrogacy arrangements will be required to meet the legal criteria both in the jurisdiction in which the surrogacy is intended to take place and also the criteria to be specified in the Irish legislation, which will correspond largely with the conditions to be met for a permitted domestic surrogacy agreement.
  • In line with the JCIS Final Report and the domestic surrogacy provisions of the AHR Bill, surrogate mothers cannot be paid more than the reasonable receiptable expenses which are incurred.
  • A process will also be introduced to allow the possibility for the recognition of parentage in respect of surrogacy arrangements – both domestic and international – undertaken prior to the commencement of the AHR Bill, as long as some key criteria are met. These criteria will include, in particular, that the surrogacy was not unlawful at the time in the relevant jurisdiction, it was a purely gestational surrogacy (the egg not provided by the surrogate mother), and the surrogate mother has provided her consent to the granting of a Parental Order for Surrogacy.
  • The process includes safeguards for the protection of the rights and welfare of all parties to a surrogacy arrangement: the child (including their identity rights), the surrogate mother and the intending parents.

The Department said, “An issue of central importance in proposing legislative measures for transfer and assignment of parentage in relation to past surrogacy arrangements is that such a process will result in the severing of the pre-existing and constitutionally protected legal relationship between the surrogate mother and the child to whom she gave birth.”