By Annette Hickey | 13 June 2022

International Surrogacy - A Statement To The Special Joint Oireachtas Committee hearing

On Thursday, 9th of June I was privileged to be invited to attend the Special Joint Oireachtas Committee on International Surrogacy meeting, where I spoke about my practical experiences of working with intended parents pursuing their surrogacy journey and the urgent need for a regulated statutory framework for international surrogacy.

At the hearing I took the opportunity to outline seven  specific recommendations regarding International Surrogacy to the  Committee. These recommendations are as follows:

  1. The inclusion of a regulated statutory framework for international surrogacy in the Assisted Human Reproduction Bill.

  2. The inclusion of retrospective recognition of parentage in the Assisted Human Reproduction Bill for all existing children born through surrogacy, (both domestic and international) at the commencement date of this legislation.

  3. The inclusion of an obligation on intended parents in an international surrogacy arrangement to apply for pre-approval from the Regulatory Authority before they start their surrogacy journey, in a similar way provided for in the Assisted Human Reproduction Bill for intended parents in a domestic surrogacy arrangement. Once the intended parents comply with the list of proofs required by the Regulatory Authority they receive a pre-approval certificate. This ensures that before any assisted human reproduction treatment commences all parties are complying with the prescribed criteria, all safeguards have been met and the surrogacy arrangement meets ethical standards. If the Regulatory Authority do not grant a pre-approval certificate the intended parents have the liberty to appeal that decision to the High Court.

  4. That the Guardianship of Infants Act 1964 as amended be further amended to provide that where intended parents have received pre approval of their surrogacy arrangement from the Regulatory Authority they shall both automatically be guardians of the child upon birth, this guardianship to cease upon the granting of Parental Orders.

  5. That upon return to Ireland with their child, once the intended parents comply with the post birth list of proofs which includes the certificate of pre-approval from the Regulatory Authority, Parental Orders for both parents will be granted by the Court. This may be a function of the Regulatory Authority in due course following future reviews and post enactment scrutiny of the implementation of the legislation.

  6. That when an application for the child’s Irish PPS number is made by the intended parents the Department of Social Protection shall give notice in writing to the Regulatory Authority of the identifying information. This would be similar to the notice provision for treatment providers as detailed at Section 59(4) of the Assisted Human Reproduction Bill.

  7. Assisted reproduction treatment is a continuing, developing and evolving area. There will continue to be advances in this field. The Assisted Human Reproduction Bill must include provisions for post enactment scrutiny of the implementation of the legislation. I support the recommendation of the Joint Health Committee in 2019 and that a review of the operation of the legislation and a related report would be brought to the Houses of the Oireachtas and that an ethics committee be established as part of the oversight and governance by the Board of the Regulatory Authority. As a practising solicitor working in this area I would suggest that perhaps 24 months would allow the legislation a period of time in operation to allow those working with the law to identify any gaps before the review commenced. There is precedent for this in how the Gender Recognition Act was reviewed. I would also ask that such a review be undertaken by a multi-disciplinary review group, as was the case with the Gender Recognition Act, with representatives of the Departments involved, intended parents, surrogate mothers, children’s rights advocates and legal practitioners in the area.

Having presented these recommendations to the hearing, I was also delighted to have the opportunity to thank the Minister for Foreign Affairs, the officials from the Department of Foreign Affairs and all the politicians from across the political divide who helped and supported Irish intended parents whose babies were due to be born in the Ukraine at the start of the war. The Irish Government's commitment to protect those Irish babies was an example to the world.

If you would like to view the full statement made at the hearing, please click here. Alternatively, if you have any questions regarding Surrogacy or would like to comment on the recommendations above, please do not hesitate to get in touch.

Written By Annette Hickey

Annette has exclusively practised family law in the litigation department for the past 10 years and heads up the firm's Surrogacy & Fertility law team.

She is highly respected and regarded for her expertise and knowledge of fertility law, surrogacy and same-sex family matters. Diligent, thorough and empathetic, Annette brings a wealth of experience, sensitivity and understanding to our team.

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