The Health (Assisted Human Reproduction) Act 2024 was signed into law by the President in July 2024, having passed all stages in both Houses of the Oireachtas.
The primary purpose of this complex and far-reaching legislation is to regulate fertility clinics providing treatment and ensure that assisted human reproduction (AHR) practices and related areas of research are conducted in a more consistent and standardised way and with the necessary oversight. The establishment of the Assisted Human Reproduction Regulatory Authority (AHRRA), as provided for in the legislation, is a vital component in the effective regulation of this sector.
The AHR Bill as initially published also included provisions in respect of domestic altruistic surrogacy. However, the final 2024 Act also includes substantive new provisions in respect of the regulation of future surrogacy arrangements undertaken by Irish residents in other jurisdictions and the recognition of parentage arising from certain past domestic and international surrogacy arrangements.
As well as the extensive scrutiny of the provisions of the Act carried out by the Oireachtas, the three relevant Departments – the Department of Health, the Department of Justice, Home Affairs and Migration, and the Department of Children, Disability and Equality – in developing the policy and provisions related to international surrogacy, engaged with other relevant Units within their Departments, other relevant Departments and stakeholders and, of course, the Office of the Attorney General (AGO), including on ensuring that the Act provides appropriate safeguards against the potential exploitation of surrogate mothers.
While the 2024 Act was progressing through the Houses of Oireachtas, issues were identified which required further consideration and consultation with the AGO. Drafting of the Health (Assisted Human Reproduction) (Amendment) Bill is at a well-advanced stage, led by the Office of Parliamentary Counsel, along with officials from the three relevant Departments. I expect to be in a position to introduce the published Bill to the Dáil this term.
The AHR Amendment Bill is a very substantive piece of legislation. It is largely concerned with outstanding issues of parentage and citizenship, particularly in respect of children born as a result of a DAHR procedure or surrogacy arrangement undertaken abroad by Irish resident parents or undertaken by Irish citizen parents living abroad. It also seeks to make other necessary amendments to various other sections of the 2024 Act.
It is important to note that the surrogacy provisions in the AHR legislation looked to build upon and learn from the experiences of other States which have sought to regulate surrogacy. The new laws were also developed having taken into consideration the views and recommendations of a large number of national and international experts, such as the UN Special Rapporteur on the Sale and Sexual Exploitation of Children, the former Irish Special Rapporteur on Child Protection and the dedicated Oireachtas committee which was established specifically to examine the issue. In addition, adhering as much as possible to the Verona Principles – a set of policy and legislative guidelines produced by a group of experts in international law and human rights to ensure respect for the human rights of children born through surrogacy – has been a major factor during the legislative drafting process.
The key aspect underpinning the regulation of surrogacy is that, whether undertaken in Ireland or abroad, it will only be permitted first and foremost if the particular proposed arrangements have been approved by the AHRRA prior to the transfer of an embryo to the surrogate mother. There is a large number of stringent criteria which all need to be met before the AHRRA will grant approval of a proposed surrogacy agreement. These requirements primarily seek to provide strong safeguards against the trafficking and exploitation of surrogate mothers and ensure the protection of the rights and welfare of any children born as a result of surrogacy.
One of the key conditions for an application for pre-conception approval of a proposed international surrogacy agreement to be granted by the AHRRA is that payment of “reasonable expenses” only are to be made to the potential surrogate mother. The Court will also have to be satisfied that this condition was met when it decides on a post-birth Parental Order application. More specific details on the issue of “reasonable expenses”, including examples of matters in respect of which such expenses may be incurred, can be found in section 94 of the 2024 Act. There are no set maximum limits in relation to the payment of “reasonable expenses” in the legislation as the amounts proposed to be paid would vary depending on factors such as, for instance, the specific circumstances of each case and the broader position in respect of the relative cost levels of relevant items in the jurisdiction concerned. It should be noted that, amongst a number of other items, a surrogate mother can be compensated for loss of earnings incurred during her pregnancy.
Numerous concerns have been raised internationally and domestically in relation to commercial surrogacy. The United Nations Special Rapporteur on violence against women and girls, Reem Alsalem, in her Report of the Special Rapporteur on violence against women and girls, its causes and consequences advises that there are concerns that financially vulnerable women would, on the basis of financial necessity, overlook or disregard the possible physical and psychological health risks associated with acting as a surrogate mother, or that they might be willing to accept such risks for financial gain alone.
Most of the relatively few jurisdictions that have legislated for and regulated surrogacy have prohibited commercial surrogacy, while permitting altruistic surrogacy with some mechanism for the reimbursement of reasonable expenses incurred by the surrogate mother. Providing for commercial surrogacy would certainly make Ireland an outlier in an EU context, with many European countries explicitly banning surrogacy in any form.
Finally, it is important to note that the Special Oireachtas Joint Committee on International Surrogacy made very clear throughout its Final Report that an international surrogacy arrangement should only be recognised if “no payments have been made to the surrogate mother beyond reasonable expenses”.
