Dr. Brian Tobin:

I thank the committee for inviting me to join it today. I commend it on its commitment to addressing the myriad issues raised by international surrogacy arrangements and on its engagement with relevant stakeholders. I am deputy head of the school of law in NUI Galway and I was invited national expert for Ireland on the international social services regional consultations on the Verona Principles and, more recently, an EU level impact assessment for a proposed EU digital certificate of parenthood that would aim to recognise legal parentage that has been established in one member state across the EU 27.

I have been asked by the committee to speak to the potential for double standards in the protections afforded to surrogates in domestic and international arrangements. The Health (Assisted Human Reproduction) Bill 2022 provides for a range of robust pre-surrogacy protections for gestational surrogates that mirror the protections provided in the Bill's predecessor, namely, the general scheme of the assisted human reproduction Bill 2017. In regulating the parentage of children born in such arrangements, the State will have to accept inconsistencies between the domestic regime for surrogacy, as contemplated by the 2022 Bill, and international regimes. If the State only proposes to regulate those international arrangements that mirror the proposed domestic regime to avoid any double standards, most international surrogacy arrangements will not be recognised under Irish law.

The 2022 Bill provides for domestic altruistic surrogacy, but any amendment to this or any future legislation that might seek to regulate, either retrospectively, prospectively or both, the parentage of children born by international surrogacy will have to be willing to embrace commercial surrogacy arrangements. A way to reduce this inconsistency would be to make the domestic regime more akin to international regimes by allowing for surrogates in domestic arrangements to be compensated to some extent, though this course of action would, admittedly, make Ireland an outlier in the European Union.

Attempting to reduce double standards by requiring a regulatory body like the assisted human reproduction regulatory authority to confirm the domestic safeguards have been complied with before surrogacy takes place abroad have been rejected elsewhere as being impractical in the context of international surrogacy. It would also be contrary to Part 7 of the 2022 Bill and international best practice for a domestic administrative process to pre-approve the legal parentage of a child born in the context of international surrogacy.

Similarly, ministerial regulations designating certain international services destinations as equivalents and automatically recognising parentage established in such jurisdictions would likely be of very limited effect because few jurisdictions would fully qualify for recognition. Leaving aside the commercial element, some jurisdictions might qualify as equivalent as regards their pre-surrogacy safeguards for surrogates, such as medical and psychological evaluations and legal advice, but they would fall foul of a post-birth safeguard provided under the 2022 Bill, namely, that the surrogate is the legal parent and guardian of the child at birth and can refuse to consent to a parental order.

The law in some commercial surrogacy destinations in Europe and the US that are popular with Irish intended parents strips the surrogate of her legal parentage prior to the birth of the child and does not allow her to revoke her consent freely after the birth to the intended parents having exclusive legal parentage. Such laws are at odds with Part 7 of the 2022 Bill and the requirements of international law. Further, since the publication of the Verona Principles in 2021, international best practice requires, in any event, that a post-birth best interests of the child determination is carried out by a court or competent authority where at least one state does not permit the specific arrangement. To my mind, any of the above suggestions appear inappropriate in the context of international surrogacy.

However, it must be remembered that at the centre of these complex legal and ethical arrangements are numerous children currently being raised in this State, whose best interests and rights under the European Convention on Human Rights require the State to facilitate the establishment of a legal parent-child relationship with both intended parents. However, legislation regulating domestic and international surrogacy should not be rushed. Going forward, I would agree with Professor Madden that the potential for double standards might best be mitigated by the establishment of a more favourable statutory regime for domestic surrogacy, because the one currently provided for in the 2022 Bill is unlikely to be availed of by many, if any, intended parents.

Part 7 of the 2022 Bill should be deleted, allowing the remainder of the Bill to be enacted for other important assisted human reproduction, AHR, issues to be regulated and for the assisted human reproduction regulatory authority, AHRRA, to be established.

In time, a new stand-alone surrogacy Bill that seeks to establish a more balanced domestic surrogacy regime and to regulate adequately the parentage of children born via international surrogacy should be proposed.