03 Oct 2019 Slow-Moving Irish ART Law Reform Would Severely Limit Surrogacy

Ireland, the traditionally Catholic country where surrogacy has existed for decades in a legal limbo, with no laws on the books, is slow-walking a badly needed overhaul of its reproductive technology laws. With the Irish legislature, the Oireachtas, at odds over historically divisive issues such as reproduction and parentage, new draft legislation may be quite some time in coming, Irish colleagues report. Even then, the proposed new law will likely allow surrogacy only under severely restricted conditions and would do nothing to help streamline the arduous process of establishing parentage of babies born via surrogacy in other countries.

The Oireachtas’ Joint Committee on Health was assigned to review the 2017 General Scheme of the Assisted Human Reproduction Bill, to solicit stakeholder feedback, and to report its recommendations for new legislation.

But colleagues on the ground tell me that work on the new law has probably been relegated to the back burner. Reportedly, the Irish Department of Health, which leads the development of assisted reproductive technology (ART) legislation, is struggling to implement Parts 2 and 3 of the Children and Family Relationships Act 2015, which relates to parentage, donors and donor-conceived children’s rights.

Lawmakers’ snail pace has real consequences: In the absence of any law governing assisted reproduction in Ireland, authorities have stopped approving adoptions by intended parents of children conceived either through donor conception or surrogacy.

When new legislation finally does emerge, as currently proposed, it likely would essentially ban “commercial” surrogacy in Ireland and allow altruistic surrogacy only under certain narrow circumstances. Furthermore, the proposed legislation would do nothing to help most intended parents of babies born via surrogacy abroad establish legal parentage once they bring their child or children home to Ireland. And in a provision modeled on adoption law, the proposed new law would do away with donor anonymity, allowing donor-conceived children to receive information about parentage at age 18.  Although this provision arises from a concern for the rights of donor-conceived children to know their origins (a growing trend among many countries), some experts expect such provisions to put a damper on egg and sperm donations.

Ironically, as The Times reports, a 90-nation survey from 2017 revealed that Ireland—with no surrogacy laws on the books—has the second highest rate of surrogacy in the world, second only to Israel. According to BioNews, “Ireland's rates for assisted human reproduction has gone up from 7,589 cycles in 2009, to nearly 9,000 cycles in 2016.”

But the country’s conservative Catholic heritage has meant that social and legal acceptance of new reproductive technologies has come painfully slowly, at the expense of infertile couples, singles and LGBTQ intended parents.

A recent opinion piece in The Irish Times gives an excellent summary of Ireland’s fraught history of reproductive laws. Although the first “test tube baby,” Louise Brown, was born in 1977, the first IVF procedures were not available in Ireland until 1985. “However, the Institute of Obstetricians and Gynaecologists drew up a set of principles and rules, treatment progressed, and the number of clinics offering IVF increased,” The Times reports. “…The Irish Clinical Embryologists Association was founded in 1998 to provide high standards of practice in clinical embryology.”

In 2000, the Irish Minister for Health established the Commission on Assisted Human Reproduction, which in 2005 issued a report containing 40 recommendations governing “all aspects of assisted human reproduction,” all but six of them unanimous. However, unsurprisingly, several issues roused steep conservative opposition: “moral status of the embryo, preimplantation genetic diagnosis, regenerative medicine, surrogacy and the legal parenthood of children born through surrogacy.”

Stalled by the conflict, the Commission’s recommendations did not result in new laws. However, as a member of the European Union, Ireland incorporated the 2006 European Community Regulations on Quality and Safety of Human Tissues and Cells into its statutes, under which Irish IVF clinics currently are regulated.

A number of court challenges, the issue of the reproductive rights of gay married couples, and the growing demand for surrogacy in Ireland eventually forced reluctant lawmakers to address ART legislation.

As The Times reported, Irish courts have been buffeted by a series of cases brought by intended parents who underwent surrogacy either in Ireland or abroad, then ran into obstacles in establishing legal parentage. In one notorious case we wrote about in 2013, a woman volunteered to serve as surrogate so that her sister, who was unable to give  birth, and her sister’s husband could become parents. But once the baby was born, the Irish Register of Birth, while registering the intended father as the legal father, refused to register the intended mother as a legal parent. Instead, based on Irish law, the birth mother—the surrogate—was registered as the legal mother—even though her sister, whose egg was used, is the biological mother. The High Court found in favour of the biological/intended mother; however, that decision was reversed on appeal, with the result that the intended father is registered as the baby’s father and the sister-in- law—the surrogate—as the mother. The Supreme Court expressed the view that it is not the responsibility of the Court, but rather the function of the government, to craft surrogacy laws. We are still waiting...

Then in 2015, the same year as the United States, Ireland legalized same-sex marriage. Suddenly parents’ gender and the expectation that married LGBT people should have the same reproductive rights as married straight couples pushed the issue of surrogacy into the public eye. We wrote about the case of two gay dads forced unwillingly to undergo genetic testing in order to prove that their son, born via egg donation and surrogacy in Toronto, is entitled to Irish citizenship.

After too many years, the Oireachtas finally accepted its responsibility, undertaking review of the General Scheme of the Assisted Human Reproduction Bill 2017, albeit at a painfully slow pace

The proposed bill is a mixed bag from the perspective of reproductive rights. Reportedly it would outlaw commercial, or compensated, surrogacy entirely in Ireland, but would allow altruistic surrogacy, governed by an enforceable surrogacy agreement, for “intending parents” who reside in Ireland, as long as the embryo transfer occurs in a clinic in Ireland. The embryo could be created by donated egg or sperm but must be genetically related to at least one of the intended parents. It is proposed that only gestational surrogacy be permitted; in other words, the surrogate’s egg may not be used in creating the embryo.

Under the proposed new law, the surrogate’s rights are paramount: she must give formal consent to become a surrogate and retains the right to change her mind at any stage; she must give formal consent to transfer parentage to the parents a second time following the birth. With the surrogate’s post-birth consent, the intended parents must apply to the courts for a parental order. Until that order is issued, the surrogate is the legal mother.

The new law does nothing to alleviate the obstacles to obtaining Irish citizenship for babies born via surrogacy in other countries, although it does help equalize the status of gay intended dads. As reported in BioNews, the foreign surrogate will still be considered the mother under the new law. The intended mother will be able to establish guardianship of the child after two years in accordance with Ireland’s Children and Family Relationships Act of 2015; the intended father may be recognized as the legal father, as long as he is genetically related to the child. Likewise, in the case of two gay dads who have a child via surrogacy abroad, the genetically related dad can establish himself as legal father under Irish law; the dad who is not genetically related can only establish himself as legal guardian—a status that ends when the child reaches age 18—after a two-year period, and will never be considered the child’s legal dad.

Despite Ireland’s continued rigid limits on domestic surrogacy and the failure to provide an easier path for families forced to pursue surrogacy in other countries, the passage of a comprehensive set of laws addressing assisted reproduction is a historic step in the right direction. At a minimum, a new Assisted Human Reproduction Bill will provide more certainty for families and better guidelines for ART providers, clinics and donor agencies where the law previously has simply dodged the issues. Here’s hoping it sails through the Irish Oireachtas and is enacted into law with no new encumbrances added. The popularity and potential of these exciting new technologies will without a doubt create their own pressure for further legal reforms that advance reproductive rights and equality for all families.