A Bill that will allow surrogacy is currently being debated in the Seanad as it reaches the final stages of approval. The Government tells us it will not recognise commercial surrogacy, but in fact it will do so by allowing big payments to surrogate mothers under the heading “reasonable expenses”.
The Assisted Human Reproduction Bill 2022 addresses numerous issues related to artificial reproduction, such as IVF and embryo experimentation, which have deep ethical problems. However, another controversial aspect of the Bill relates to commercial surrogacy, which is banned in all EU countries.
In a previous blog, we raised serious concerns about an earlier draft of the Bill. With its progress in the Oireachtas, some approved amendments have exacerbated these issues, making the situation even worse.
An older version of the Bill would have banned payment of agencies or professionals who liaise with the surrogate mothers and organise the financial transactions with the commissioning parent(s).
The big change in the new version of the law is that while payment of intermediaries is still banned in Ireland, it allows for the payment of intermediaries overseas.
This double standard was criticised by a document of the Attorney General's office in 2022 but the Minister for Health, Stephen Donnelly, has ignored these warnings.
By permitting the payment of intermediaries abroad, the amended Bill is further endorsing a disguised form of commercial surrogacy, as these intermediaries often charge premium rates for their services.
The Bill purports to ban commercial surrogacy within the state, however, a closer examination reveals a loophole-laden framework that permits a multitude of “reasonable expenses” effectively transforming what is claimed to be altruistic surrogacy into a commercial endeavour under a different guise.
The scope of what constitutes “reasonable expenses” has been expanded in the new version of the Bill and includes numerous categories that significantly blur the line between altruistic and commercial surrogacy.
First, the Bill permits compensation for any loss of income the surrogate mother might incur due to her pregnancy. This can include a period of up to six months around the time of birth. If you are in a demanding, but low-paid job on casual hours and you are offered what amounts to a steady wage for up to six months, how is this not commercial, in effect? The period can be extended to 12 months if the surrogate is not able to work because of medical complications.
In practical terms, this provision means that a surrogate could receive a substantial sum if she has a well-paying job, thereby creating a financial incentive rather than merely covering a loss.
In the amended version of the Bill, the definition of loss of income has been expanded to include any “net loss” and this applies not only the surrogate mother but also the woman who donates the eggs.
Moreover, the Bill allows for the reimbursement of pre-natal and post-natal medical expenses. The extent of these expenses can be substantial, encompassing everything from routine check-ups to more complex medical treatments and procedures. Given the high costs associated with reproductive medicine, these reimbursements alone could amount to significant sums.
Travel and accommodation expenses related to medical appointments and the birth process are covered by “reasonable expenses”. This provision opens the door to potential exploitation. For instance, surrogates living far from top-tier medical facilities could claim extensive travel expenses, including frequent trips and extended stays in comfortable accommodations, all funded by the intending parents.
The Bill includes allowances for various supportive services. Surrogates can be reimbursed for housekeeping or childcare services if they are unable to perform these tasks due to their pregnancy. Maternity clothing and pregnancy aids are similarly covered, further increasing the financial support provided to the surrogate.
Counselling services, both legal and psychological, are another category of “reasonable expenses”. The surrogate mother and intending parents must receive independent legal advice, the costs of which are to be borne by the intending parents. These legal fees can be quite high, especially if involving extensive consultations or complex legal procedures. In practice, not only the surrogate mother but many other professionals involved in the surrogacy arrangement will be compensated under the broad heading of “reasonable expenses”.
The cumulative effect of these allowances is that the surrogate mother could receive a considerable amount of money. This comprehensive financial coverage effectively transforms surrogacy arrangements that are presented as purely altruistic into something that provides significant financial benefits to the surrogate mother. (In Canada, a surrogate mother can receive between $18,000 and $35,000, which is €12,000 to €24,000.)
In conclusion, while the Bill claims to ban commercial surrogacy, it does nothing of the sort in practice as it endorses commercial surrogacywhen it happens abroad. Moreover, its broad definition of reasonable expenses, when it happens in Ireland, creates a framework that is equivalent to commercial surrogacy in practice.
The Government is taking us for fools and the latest version of the Bill is even worse than the older version in this regard.
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