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Artillery Row

Ireland’s surrogacy scandal

The Irish inferiority complex grasps at any first — no matter how low

One of the easiest ways to achieve legislative change in Ireland is to allege that the country is behind the rest of Europe or the world in regard to any issue. 

So keen are the country’s politicians, once goaded by activists, to rectify such situations that we have now surpassed ourselves by passing the Health (Assisted Human Reproduction) Act 2024 late last month which legislates for both domestic and international surrogacy. Health minister Stephen Donnelly boasted that “no other jurisdiction has legislated for a similar type of bespoke process to that which we propose to be set up here”. 

Two years ago civil servants warned that: 

Providing for recognition of foreign commercial surrogacy arrangements while limiting domestic surrogacy to altruistic arrangements, thereby providing a greater standard of protection for women in Ireland than abroad, would create a double standard in Irish law which may be difficult to justify.

As a consequence, both domestic and international surrogacy will be limited to “altruistic” only — where the mother is concerned, that is.  What goes unexplained is why any woman in another country would be willing to go through pregnancy (using a donor egg), childbirth and possible long-term gynaecological consequences only to give up her baby at birth for altruistic reasons to commissioning adults based in Ireland. Indeed on the same day the Seanad (upper house) passed the legislation, three maternal deaths were reported in Ireland — an unusually high figure but one which nonetheless highlights the risks inherent in childbirth.

The bill provides for a “surrogate mother” to be paid “reasonable expenses”.  These can include loss of income if unable to work on medical grounds due to pregnancy or childbirth, paid housework or childcare once verified by receipts or other documentation but these are unlikely to tempt many women in Ireland. Hence it’s most likely that the demand for women to provide babies to strangers will be met by exploiting poor women in other parts of the world where Irish jurisdiction doesn’t reach, despite what will doubtless be the best efforts of the soon to be created Assisted Human Reproduction Regulatory Authority (AHRRA) which will adjudicate on applications.

Senator Mary Seery Kearney, who herself has a child born through surrogacy and was a leading figure in the bid to secure this legislation, said last year that she was concerned that if provision is not made in upcoming legislation for a “goodwill payment” from the intending parents to be given to a surrogate, it risked creating a system of “hidden payments”. 

“It is my belief that for the regulation to work correctly it must honestly face the reality of such payments,” she told RTE’s Prime Time news programme, “Banning them won’t mean that no payment will be made, it will just mean that the payment will be under the table, leading to coercion of vulnerable intended parents. Transparency is the key.”

That baby is to be deliberately deprived of one parent to meet the wants of the commissioning adult

However, the bill is extraordinarily generous in its other provisions.  A surrogate mother needs to be a minimum of 25 years old but a commissioning adult need only be 21 and even single. And although an amendment preventing someone with a conviction for child sex offences being able to avail of surrogacy was rejected by the Minister, there is surely more of a risk in a paedophile with no known history of his proclivities being able to successfully apply.

In the early 1990s Brian Doolan was one of the first single men in the State to adopt a child from abroad, “though his history of abuse was not known to the authorities at the time the adoption was approved,” reported The Irish Times in 2017:

Doolan’s best-known work is Principles of Irish Law…The eighth edition was published in 2011. Extraordinarily, the eighth edition included chapters on the finer points of children’s rights under the law at a time when he knew a major investigation into his own crimes was nearing conclusion.

Even leaving aside the risk of child sex abuse, it’s not clear why the Irish State should be enabling single adults to acquire a baby, when that baby is to be deliberately deprived of one parent to meet the wants of the commissioning adult. Why is it the State’s role to step in at all?

An amendment that “No single man shall be allowed to undertake surrogacy” was also refused by Minister Stephen Donnelly who said to do so would be “unacceptably discriminatory”.  

The Minister said: “When it comes to a single man who wants to have a child or children, surrogacy may be the only option available to him, and we are accepting that for a woman on her own.” Yet the Joint Committee on International Surrogacy composed of TDs (MPs in the UK) and senators admitted in their report on the issue that “The rights and best interests of the child should be of paramount concern throughout the process.”  
Senator Rónán Mullen argued that there is nothing in the legislation to prevent the possibility that the genetic father of a child could be registered as that child’s mother in any parental order or subsequent civil registration:

This could happen for example in the case of a male who has availed of the provisions of the Gender Recognition Act 2015 to have a ‘preferred gender’ of female.”

“Similarly, it could also arise that a female, having donated her egg for an embryo transfer to a surrogate, could seek to be designated as a ‘father’.

Not only does the new Act cover surrogacy but a variety of other issues such as gamete and embryo donation for assisted reproduction and research, embryo and stem cell research and posthumous assisted human reproduction

Minister Donnelly told the Seanad last month there was an “urgency” to the bill because “when a general election is called all legislation falls” and Ireland is due to have a general election once the current Dáil term ends in February of next year, although earlier dates are being mooted already.

Senator Sharon Keogan challenged the guillotining of the bill on the last day it was deliberated on. “To take Committee and all Remaining Stages of the Bill today is an insult to the House, given that it is such important legislation,” she said on 26th June. The 197 pages bill, which was passed at the end of May in the Dáil (lower house), was rushed through the Seanad in just under a fortnight.

Even the intervention of Senator Michael McDowell, a former Attorney General and Minister for Justice in support of Sen Keogan’s request for adjournment was not enough.  

“Will a single male person be in a position to enter into a surrogacy contract and have a child by surrogacy in circumstances where that person would not be considered a suitable person to adopt a child?” Senator McDowell asked. “That is a fundamental question. We are walking straight into that without considering the implications carefully.”

While allowing anyone who is “habitually and lawfully resident” here for just two years to apply for a baby through surrogacy there is also another upcoming bill which deals with providing financial assistance by the State to those seeking assisted human reproduction.  

Could this encourage surrogacy tourism from other English speaking countries worldwide and from many other parts of Europe where surrogacy is illegal such as France,  Germany, Spain, Italy, Norway, Sweden and Finland?

The human cost to women and children from surrogacy will be left to future generations to weep over and wonder how we did it.

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