Head of Surrogacy and Fertility Law, Annette Hickey was very pleased to be included in the discussion on the regulation of International Surrogacy on Prime Time, RTE One 26 September 2023.
The policy proposals for the regulation of international surrogacy after the Assisted Human Reproductive Regulatory Authority has been established involve a two-step procedure:
- Preconception approval from the Assisted Human Reproductive Regulatory Authority.
- Post-birth Court process for the granting of parental orders.
Looking at each of these points in further detail:
- 1. Preconception Approval
When the intended parents make an application for preconception approval to the Assisted Human Reproduction Regulatory Authority, they must include:
- a statement of the total reasonable expenses anticipated to be paid to the surrogate;
- a statement itemising all anticipated expenses under the International Surrogacy Agreement;
- a statement itemising all anticipated fees to be paid to a surrogacy intermediary or agency by the intending parents;
- a statement itemising the anticipated fees and expenses which will be paid by the surrogacy agency on behalf of the intended parents;
- details of any intermediary involved; and
- confirmation as to whether the proposed payments will be paid directly to the surrogate mother or via an agency or an intermediary.
- 2. Post-birth Court Process
During the post-birth parental order procedure, the Court should be provided with written documentary evidence to prove that:
- the anticipated payments itemised in the pre-conception authorisation were actually paid;
- verifiable documentation in respect of any additional expenses paid to the surrogate which were not included in the pre-conception application; and
- verifiable documentation in respect of any payments involving the surrogacy agency.
The government proposals provide for post-birth judicial oversight but do not provide for judicial discretion. The rationale appears to be that providing for such judicial discretion could undermine the safeguards provided by the pre-conception authorisation framework.
Judicial oversight would appear to extend to the Court after considering and reviewing the itemised and accompanying receipts to evidence “reasonable expenses” deciding whether such expenses can be considered as reasonable or not.
If you would like to discuss any aspect of International Surrogacy with Annette, please do not hesitate to get in touch.
