Surrogacy: Forging a Legal Framework for Ireland

Dr Brian Tobin at NUI Galway will shortly be recruiting a PhD student in Child and Family Law.

This is a fully-funded PhD scholarship which includes full fees plus €18,500 per year for 4 years & is a fantastic, rare, funded PhD opportunity not to be missed. The successful candidate will undertake a PhD in the area of under the supervision of Dr Tobin at NUIG.

The advertisement for the PhD Scholarship will appear here and on other fora later this week...

Ireland's approach to surrogacy laws would benefit from taking cognisance of the law reform process in the U.K. and the recently published 'Verona Principles' on the protection of the rights of children born through surrogacy, which were endorsed by the UN Committee on the Rights of the Child, writes Dr Brian Tobin.

Brian Tobin: Ireland’s approach to surrogacy law needs a rebirth Ireland should follow a similar path to the UK's ongoing collaborative, robust reform process

Parents of surrogate-born children and children conceived through reciprocal IVF and home-insemination are not covered under the newly-commenced legal provisions. Dr Tobin reminds us that while some progress has been made, there is much work left to be done.

Progressive New Child and Family Laws, but Some Families are Left Behind The commencement of new laws offers recognition and protection for some contemporary, more diverse forms of ‘family life’, but this is not a panacea for all ills, writes Brian Tobin

Congratulations to Dr Brian Tobin who has been awarded a Charlemont Grant by the Royal Irish Academy to carry out research on international surrogacy and the law at the Cambridge Family Law Centre at the University of Cambridge this summer.

A noble campaign trying to reach very complex objectives Trying to get both women in a same-sex relationship to be recognised as a mother in assisted human reproduction is not straightforward, writes Brian Tobin

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Last Monday the Minister for Health Simon Harris signed the commencement order for Parts 2 & 3 of the Children and Family Relationships Act 2015. Here is my critical analysis of the short speech made by the Minister for Health on Monday:

1. The Minister speaks of how the forthcoming law will benefit "many families who've had their child through donor-assisted reproduction to register both parents' names on the birth cert from the 5th of May next year." It would of course have been more accurate to refer to the legal benefit for many families who've had their child through donor-assisted reproduction (but not reciprocal IVF!) that took place in a clinical setting. This law will not benefit those who conceived a child via home-insemination or reciprocal IVF.

2. The Minister speaks of how the law will (prospectively) "ban anonymous donation" and "set up a register of donors" which is absolutely necessary to protect the child's right to knowledge of genetic identity. This is one of the significant strengths of the 2015 Act from a children's rights perspective.

3. Quite tellingly, the Minister speaks of "the need to bring forward the AHR Bill and regulate surrogacy in our country." The words "in our country" indicate that the State intends to only prospectively regulate domestic surrogacy agreements.

4. The Minister wants "to look at how we best support families who already have children in our country and had those children through surrogacy." This could indicate that the State is open to examining how to retrospectively recognise parentage of children born through international surrogacy arrangements but living in Ireland. While this seems promising, whether these measures will form part of the forthcoming AHR Bill remains to be seen.

5. Finally, the Minister rightly acknowledges that the signing of the commencement order is "an important step on the journey to equality, but there's absolutely more to do" and "2020 is going to bring significant progress in that regard." This author is sceptical as to what real progress will be made on surrogacy/AHR issues in 2020. The General Scheme of the Assisted Human Reproduction Bill was published in October 2017 and has taken a very long time to progress (NB: this General Scheme/draft Bill should not be confused with the (allegedly) forthcoming Assisted Human Reproduction Bill, although there is likely to be no significant difference between the two IMHO). Notably, the Minister's short speech makes no mention of looking at how the State can best support families who already have children via reciprocal IVF or home-insemination - he only mentions families who have children that were born through surrogacy. The Minister is undoubtedly aware of the McD v L judgment from the Supreme Court in 2009 and its potential implications for the regulation of home-insemination and perhaps that is why he steers clear of the issue. However, reciprocal IVF carried out in a clinical setting could more easily be legislated for so one wonders why the Minister did not refer to it here. To conclude, it is doubtful that laws relating to either reciprocal IVF or home-insemination will form part of the Assisted Human Reproduction Bill (though this author hopes to be proven wrong, of course).

Please like and share this post if you find the analysis useful! Here is the link to the video of the Minister's short speech:

Department of Health on Twitter “ Parts 2 & 3 of the Children and Family Relationships Act 2015 are concerned with the rights of children conceived through the use of donor embryos or gametes. More info: https://t.co/ntBszlutKe https://t.co/oKwR...

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This one-day conference being held in London next month is suitable for anyone with an interest in law reform. Dr Brian Tobin (NUI Galway) will present a paper on Ireland's draft laws. Interested parties can register for the event via this link:

Reforming Surrogacy Laws: Future Directions and Possibilities - University of Kent This one-day conference is suitable for anyone with an interest in reforming surrogacy laws across the UK, including academics, legal and other practitioners, those involved in surrogacy organisations or with independent surrogacy, policymakers and more.

The ECHR has issued an advisory opinion on surrogacy and the child's right to respect for private life under Article 8:

https://hudoc.echr.coe.int/eng?i=003-6380799-8365006 #{%22itemid%22:[%22003-6380799-8365006%22]}

HUDOC - European Court of Human Rights The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the Commit...

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There's been some very confused media reporting on international surrogacy and applicable Irish law lately. This post should clear some of that up.

1. The Children and Family Relationships Act 2015 has got nothing to do with surrogacy. Let's finally get that straight. It allows a person to apply to court to be appointed a guardian of a child after 2 years where they are a spouse, civil partner or cohabitant of the child's parent.

So yes, as regards GUARDIANSHIP it can benefit male same-sex parents of surrogate-born children by allowing a co-father who is not genetically related to the child to be appointed a guardian by a court after 2 years. However, guardianship entitles a person to legal decision-making capacity in relation to a child and it ends once the child turns age 18.

Once commenced, Parts 2 & 3 of the CFRA 2015 will NOT enable both male same-sex parents of surrogate-born children to have their parentage legally recognised in Ireland.
These Parts of this Act are only of significance for both opposite-sex parents or both female same-sex parents of children conceived in clinics with donor gametes. Such couples can have their parentage recognised under the Act.

So, let's finally banish this irrelevant legislation from our minds when talking about surrogacy!

Similarly, once enacted/commenced, the Civil Registration Bill 2019 will NOT enable male same-sex parents to both be named on their surrogate-born child's Irish birth certificate.

There is a simple reason for this - how can legislation enable both male same-sex parents to be registered as legal parents on a birth certificate when there is no Irish legislation recognising their parentage in the first place?!

The 2019 Bill will enable both opposite-sex/female same-sex parents of children conceived in clinics with donor gametes to be registered on their child's birth certificate because Parts 2 & 3 of the earlier 2015 Act will legally recognise their parentage in this context.

This is why it is crucial that the General Scheme of the Assisted Human Reproduction Bill 2017 (GSAHR Bill 2017) recognises male same-sex parents' parentage of their surrogate-born child, whether that child is born through domestic or international surrogacy. THIS DRAFT LEGISLATION deals with surrogacy in Part 6 - it is what the media should be focussing on! At present, it will only prospectively regulate altruistic surrogacy that takes place in Ireland. Efforts need to focus on an amendment that sees it recognise parentage of children born through international surrogacy:

https://www.thejournal.ie/readme/opinion-long-awaited-surrogacy-laws-still-wont-recognise-many-parents-4513551-Mar2019/

Once parentage is recognised by law, registering a child's birth should follow via amendments to existing legislation or a new, separate piece of legislation...but first we need the GSAHR Bill 2017 to recognise parentage of children born via international surrogacy!

If this post was helpful or clarifies the current legal situation for you, please indicate via liking and I will write more like it. Comments/queries are also very welcome!

If sharing/reproducing this post please credit the original author as per the copyright above.

Opinion: Long-awaited surrogacy laws still won't recognise many parents Surrogacy still isn’t regulated in Ireland. New rules are on the way but they won’t solve the problem of recognition for couples who previously entered surrogacy arrangements abroad, writes Brian Tobin.

Listen back to Dr Brian Tobin from the NUI Galway School of Law discuss surrogacy and Irish law on the Moncrieff show on Newstalk FM on Monday, 11th March (00:35:50 - 00:41:30):

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