Dr Brian Tobin of NUI Galway writes on potential solutions to the challenges of legislating for surrogacy in Ireland.

Rather than make proposals for the legal regulation of surrogacy last month, a governmental inquiry on surrogacy in Sweden published its conclusion that surrogacy should actually be banned, with no exceptions. While this seems especially harsh, the Irish experience of attempting to legislate for surrogacy has demonstrated that it is a task fraught with difficulty.

In 2014, the Oireachtas proposed to regulate surrogacy here for the first time, but the controversial provisions were later dropped from what ultimately became the Children and Family Relationships Act 2015. This was a wise move given that the proposed model of regulation seemed rushed – copied and pasted from other jurisdictions – and could have fallen foul of the ‘Children’s Amendment’ that the electorate voted in favour of inserting in the Constitution following a referendum on children’s rights in November 2012.

The Oireachtas proposed to legislate for gestational surrogacy arrangements, where the surrogate carries to term an embryo formed from the sperm and egg of others. Those persons who provide the genetic material (sperm and egg) that form the embryo are usually the ‘intended parents’, a heterosexual married couple where the wife is unable to carry an embryo to term. The surrogate does not use her own genetic material under this type of arrangement.

The proposals would have enabled the intended parents to apply to court for a transfer of parentage 30 days after the child’s birth, but only if the surrogate consented to the making of the application. If the surrogate refused to consent, she would have been regarded as the child’s legal mother and the intended parents would have been left with no legal remedy. This might be understandable in the case of a traditional surrogate who uses her own egg to help form the embryo and is thus the genetic mother of the child, but granting a gestational surrogate an unconditional statutory right to keep what is essentially (and genetically) a married couple’s child would have been absurd and most likely contrary to Article 42A of the Constitution, the Children’s Amendment.

Under that article, the State vows to protect and vindicate the “natural and imprescriptible” rights of all children. Every child has, where possible, a natural constitutional right to family life pursuant to this constitutional amendment. If, following the birth, the gestational surrogate refused to consent to a legal transfer of parentage in favour of the intended parents and sought custody of the child, it could surely have been argued that she was acting contrary to the child’s natural constitutional right to enjoy a family life with its genetic parents? Where the genetic parents are a heterosexual married couple and both members of the couple have provided the genetic material (egg and sperm) used to create the embryo, this argument could hold significant weight in the courts because, by withholding her consent, a gestational surrogate would not only be denying the child its right to be reared by its genetic parents, but her actions could also be viewed as an “attack” on the married family itself which the State pledges itself to guard with special care in Article 41 of the Constitution. Indeed, in the much-publicised surrogacy case decided by the Supreme Court in 2014, the court warned that although it is largely a question of policy for the Oireachtas to determine the precise parameters of any future surrogacy legislation, it must do so “within constitutional bounds”.

There is a more constitutionally sound alternative to this model for assigning parentage following the child’s birth – a legislative model based on pre-birth judicial approval of a surrogacy arrangement. This involves court approval of a gestational surrogacy arrangement prior to the implantation of the embryo in the clinic, and such model has been effective in Greece and in California. Once the court has approved the surrogacy arrangement between the parties, there is a statutory presumption of maternity and a presumption of paternity in favour of the intended parents as soon as the child is born. From the child’s perspective, its natural constitutional right to family life with its genetic parents is therefore guaranteed before it is even born. From the intended parents’ perspective, there is certainty in relation to their parental status following the child’s birth, and consequently no need to worry about the surrogate not consenting to an order seeking to transfer parentage. Where the intended parents are a married couple this approach would help to prevent an ‘attack’ on their constitutional family unit by a non-consenting gestational surrogate following the child’s birth.

Indeed, the Surrogacy UK Working Group on Surrogacy Law Reform has recommended that UK surrogacy law should be reformed to embrace this type of pre-birth authorisation model for surrogacy. The Department of Health recently confirmed that its officials are drafting legislative provisions that could see the regulation of surrogacy become a reality here in the not-too-distant future. However, one can only hope that this time any proposed legislation will be truly cognisant of the constitutional rights of the child and not just a hastily-drafted, slightly re-tooled version of what has come before.