Dr. Andrea Mulligan:

I am very grateful for the opportunity to speak to the committee this morning.

Surrogacy is an exceptionally complex issue because it presents unique ethical challenges. My own view is that done properly surrogacy is nothing short of miraculous. It can be a wonderful way to build a family. However, done wrongly, surrogacy can be deeply problematic for the child, the surrogate and the intended parents. Regulating international surrogacy is even more complex. Virtually all jurisdictions struggle with it. There is no single legal regime that can simply be cut and pasted into Irish law. Everyone agrees the best way to regulate international surrogacy would be via an international convention, like the Hague Convention on intercountry adoption. Work is under way on a surrogacy convention but may not be complete for some time. In the meantime states need to find their own solutions.

The challenge with regulating international surrogacy is to provide a practical route to parental status for some international surrogacy arrangements, but to ensure this does not undermine the fundamentals of Irish law on surrogacy. The difficulty is when domestic courts encounter international surrogacy they are effectively presented with a done deal whereby the child is already living with the parents and remaining with them is almost always in the best interest of the child, even if the underlying surrogacy arrangement was itself problematic. Despite these challenges, it is essential the forthcoming legislation regulates parental status in international surrogacy. I understand the vast majority of surrogacy arrangements entered into by Irish people involve surrogates who live overseas. This will likely persist to some degree even when surrogacy is regulated in Irish law. If this legislation does not tackle international surrogacy it could well have no impact whatsoever on the reality of surrogacy in Ireland. Furthermore, the overwhelming majority of international surrogacy arrangements are commercial in nature. Thus, the legislation must take a position on international commercial surrogacy. It is also essential the legislation addresses retrospective attribution of parental status in surrogacy. This is highly relevant because most Irish children born through surrogacy were born abroad. The Health (Assisted Human Reproduction) Bill 2022, which I will refer to as the AHR Bill, sets out the parameters for the domestic surrogacy regime. The work of this committee, as members know, is to craft a regime for international surrogacy that fits in with that domestic regime.

Surrogacy legislation must comply with Ireland’s obligations under the European Convention on Human Rights. The European Court of Human Rights has handed down some major decisions addressing the obligation of states to recognise parent-child relationships arising from international surrogacy. The most important of these cases concern French law. What is significant about this is that all surrogacy, including non-commercial surrogacy, is illegal in France. Despite this, the Court found that France had obligations to children born through international surrogacy. The case of Mennesson concerned twins born to French intended parents via a surrogate in California. The intended father was the genetic father but the intended mother had no genetic relationship to the children. The court found that the refusal of the French state to recognise the relationship of the children to their father was a breach of their right to respect for their private life. In a subsequent case the Court found that France was also obliged to recognise the children’s relationship to their intended mother, though it was permissible to do this by allowing her to adopt the children. After these judgments it seems the State must recognise the parental relationship between intended parents and children born through international surrogacy, at least where there is a genetic link to one parent. This appears to include commercial surrogacy arrangements.

Turning then to the question of how to regulate international surrogacy in Irish law, the first major question is which international surrogacy arrangements should be recognised. I suggest approaches to this can be loosely categorised into three types. First is the strict approach. Recognition would be restricted to those arrangements which would be lawful if carried out in Ireland. This would mean they would need to comply with all aspects of the domestic surrogacy regime which, as members know, are quite exacting under the AHR Bill. This approach has the advantage of maintaining principled consistency between the domestic and international regimes. However, the downside is it would likely accommodate very few cases of international surrogacy because all commercial arrangements would be excluded. Second is the moderate approach. This would allow recognition of some international surrogacy arrangements, provided certain core requirements are met. For example, this might allow recognition of parentage arising from some commercial arrangements as long as those are found not to be exploitative. Another core requirement might be protection of the child’s right to identity. The advantage of this approach is that it would pragmatically accommodate a reasonably large number of surrogacy arrangements while protecting fundamental aspects of domestic surrogacy law. The downside would be that there would be some surrogacy arrangements that would inevitably fall outside the recognition system. Third is the liberal approach. This would allow a wide discretion to recognise parental status in surrogacy arrangements, subject to recognition being in the best interests of the child. This approach would have the advantage of accommodating many international surrogacy arrangements. However, the downside would be it would risk seriously undermining the domestic regime as it could entail recognising parentage in surrogacy arrangements that are ethically questionable. The second major question concerning recognition is what process should be used for the recognition of parentage. One approach is to allow the courts to recognise parental status. Another approach is to allow some surrogacy arrangements and the parentage arising from them to recognised via the assisted human reproduction regulatory authority to be established under the legislation. That might operate alongside a court-based process.

In conclusion, we have to accept that in a small country there will always be some demand for international surrogacy. Those arrangements will usually be commercial in nature. The AHR legislation will be seriously defective if it fails to address those arrangements but it must do so in a coherent way that upholds the fundamental principles of Irish surrogacy law.

I would be delighted to answer any questions the members of the committee may have.