Mr. Muiris O'Connor:

I thank the Cathaoirleach and members of the committee for the invitation to join the discussion on this issue. As the Cathaoirleach has said, I am joined by Mr. Niall Redmond, principal officer, as well as remotely by Mr. Colm McGennis, assistant principal, from the bioethics unit at the Department of Health. I will provide a brief overview of the Government’s proposals to regulate surrogacy as undertaken in this country.

As the committee will be aware, the Health (Assisted Human Reproduction) Bill 2022, commonly referred to as the AHR Bill, passed Second Stage in the Dáil on 23 March and has been referred to the Select Oireachtas Committee on Health. This comprehensive and long-awaited legislation will for the first time encompass the regulation of a wide range of practices undertaken in this jurisdiction within this complex and fast-moving area of healthcare.

Part 7 of the Bill details the specific conditions under which surrogacy in Ireland, that is, domestic surrogacy, will be permitted. The relevant provisions were drafted with the aim of providing a robust framework with all required safeguards in place for dealing with domestic surrogacy applications. In considerations regarding the possibility of legislating for international surrogacy, the Department of Health is primarily concerned to ensure that any proposals that may emerge do not undermine the principles of the policy in respect of domestic surrogacy, as reflected in the Bill, or create a conflicting policy landscape.

The briefing document provided to the committee sets out the circumstances under which a domestic surrogacy agreement may be approved. The issue of payments for surrogacy, other than the reasonable expenses of a surrogate mother, is of particular relevance and significance in the context of international surrogacy. It is generally understood that most foreign surrogacies involve commercial payments beyond reasonable costs. The domestic prohibition on commercial surrogacy is predominately based on concerns and ethical considerations relating to the welfare and commodification of the children involved, as well as the potential risks of coercion and exploitation of financially vulnerable women to act as surrogates.

Government policy to prohibit commercial surrogacy is consistent with similar policies internationally. Most jurisdictions that have legislated for surrogacy have prohibited commercial surrogacy, except a very small number such as Ukraine, a number of American states, including California, Illinois and Idaho, and Russia. This is a significant factor in deliberations regarding any proposals for policy and legislative intervention in respect of international surrogacy.

It is important that the overarching policy and legislative framework is coherent and avoids confusion. There are deep considerations that need to be explored in respect of the public policy position and seeking alignment across domestic and international surrogacy. The focus of AHR Bill is on the regulation of a wide range of practices undertaken in this jurisdiction exclusively and especially those carried out by private fertility clinics operating here. The issues which arise from Irish people engaging in cross-border surrogacy primarily relate to parentage, citizenship and, potentially, adoption.

Overall, the Department of Health is anxious to ensure that the AHR Bill progresses as quickly as possible and without undue delay. The Bill provides a regulatory framework for assisted human reproduction in Ireland across various treatment types, including IVF, and provides an ethical framework for research on new reproductive technologies. It is estimated that in excess of 10,000 IVF cycles and other advanced assisted human reproduction treatments are undertaken in this country every year. In comparison, it is understood that the number of international surrogacy arrangements involving Irish residents annually is, in relative terms, limited. This is not to diminish the importance placed on surrogacy arrangements by intending parents, who are dealing with a range of difficult issues and emotions that arise in the context of infertility problems.

Delay in progressing the AHR Bill will directly impact on the patients and the prospective parents involved in the tens of thousands of time-sensitive procedures carried out within this jurisdiction yearly. It would also impact on service providers who must plan for and be ready for the new regulatory regime. This legislation will increase protections for service users, standardise services and ensure public confidence in those services.

It is also important to reflect that further delay in progressing the AHR Bill could have adverse knock-on effects on the timelines for the establishment of the assisted human reproduction regulatory authority, the development of the necessary secondary legislation and the Department’s plan to introduce the provision of advanced AHR treatment through the public health system, in conjunction with the HSE. Progress on these critical items, to give full effect to the regulatory framework can only be made once the Bill is passed.

The absence of a regulatory framework for this innovative and sometimes controversial sphere of healthcare in this country clearly makes Ireland an outlier internationally. However, the Department of Health is not in agreement with much of the commentary on the topic that our country should similarly be considered a laggard on the issue of international surrogacy. For instance, the Department is not aware of any EU member state which has legislated specifically for its own citizens engaging in surrogacy in another jurisdiction. Rather, the norm appears to be that existing family law is utilised and adapted to deal with specific cases, similar to what this State has done to date in this area.

Notwithstanding that, the matters which arise in the context of international surrogacy are largely not within the direct policy scope of the Department of Health, the Minister and the Department are eager to support the consideration of these complex issues where possible. We are interested in hearing the views of the committee and answering any questions that arise.