Ireland has recently passed one of the most permissive surrogacy law in Europe. To appreciate how extreme this law is, it can be compared with what is in the report issued last year by the Law Commission of England and Wales, in collaboration with the Scottish Law Commission.
This report reviews the current legislation and case law in the UK, which is already liberal by international standards, and proposes recommendations, including a draft bill for potential implementation. Unlike us, it recommends against international surrogacy.
Currently, in the UK, surrogacy is permitted, but the commissioning parents can apply for a parental order only after the child is born. The report recommends a new pathway so that the commissioning parents do not need to make an application to the court but, instead, their pre-conception agreement with the surrogate mother is registered by a newly proposed regulatory body, and they become legal parents as soon as the child is born.
The report repeatedly specifies that the pre-conception agreement is not a contract and is not enforceable by the parties against each other as a matter of contract law. The gestational mother can withdraw her consent before birth and up to six weeks after the baby is born.
In Ireland, the regulatory authority approves the surrogacy agreement before birth, and the application for a parental order is made after birth. This is the case for domestic and international arrangements.
The UK law reform, however, recommended against including international surrogacy arrangements in their proposed pathway, using the same arguments presented in Ireland—unfortunately without success—by the few members of the Oireachtas who opposed the new legislation.
“We have concluded that international surrogacy arrangements should be excluded from the new pathway, as we are concerned by the risks of exploitation since international surrogacy is beyond the jurisdiction of surrogacy regulation in the UK. … Such international surrogacy arrangements are almost invariably commercial in nature,” the report says.
The report highlights ethical, legal, and practical challenges. It acknowledges that international surrogacy often occurs in countries with weaker regulations, increasing the risk of exploitation of surrogate mothers. These women may face inadequate legal protections, poor healthcare, and financial arrangements that are not transparent or fair. The disparities in legal standards between countries can also create significant legal uncertainties for intended parents, particularly when bringing the child back to the UK.
“The risks of exploitation will depend on the effectiveness of regulation provided by national laws in different countries, and the impact that the payment available to women to be a surrogate can have on the lives of the surrogate and her family. Concerns may be greatest where regulation is inadequate, the sums of money payable to women who act as surrogates are life-changing, and where women do not have equal access to employment, education or other opportunities. While we do not consider that all international arrangements will necessarily be exploitative, we consider that the risk of exploitation is considerably higher than in domestic agreements and that those risks cannot be controlled by domestic laws”, says the report.
The UK Law reform document also notes the potential risks to the welfare of the child, including issues related to legal parentage, citizenship, and the child’s right to know their origins. The lack of international agreements on surrogacy standards exacerbates these risks, leading to inconsistent practices and outcomes.
Similar concerns were raised at the hearings of the Special Oireachtas Committee, even by some state officials, but they have been completely ignored by the Government. It is not an exaggeration to say that Ireland new surrogacy legislation is extreme, with no concern for the exploitation, commodification, and psychological harm caused, here and abroad.
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