A snapshot of surrogacy in Ireland with a comparative look at international practices

AuthorBronagh O'Hanlon - Katie Winder - Chloe O'Reilly
[2020] Irish Judicial Studies Journal Vol 4(2)
Abstract: Thi s article outlines the developi ng law of assisted human reprod uction, specifically surroga cy, in
Ireland with a f ocus on the pro tections provi ded in the Children and Family Rela tionship Act 2015, the
proposals contained in the General Scheme of Assisted Human Reproduction Bill 2017 and the procedures
that have a risen f rom the fail ure to have appropriate legislation in place. In Ireland, surrogacy is largely
unregulated, so this article also provides a comparative look at the re gulations - or la ck thereof - in other
jurisdictions, namely the United Kingdom, United States and Ukraine , where Irish citizens hav e (and
currently) seek services .
Authors: Ms. Justice Bronagh O’Hanl on, Katie Winder LLB and Chloe O’Reilly LLB (Ling. Franc).*
Modern reproductive technology can allow a complete split between various
parental roles that once were necessarily bound in most circumstances. A child
created through assisted reproductive technology (ART) might have a genetic
mother, a genetic father, any number of social/intended parents, and a
gestational mother. Society is now faced with the question of who the child's
parents are; mere biology can no longer answer that question. By allowing a
person to become a parent regardless of his or her reproductive capacity, ART,
in particular surrogacy arrangements, forces us to confront deeply held beliefs
about what makes a mother or a father, and indeed, what makes a woman
or a man, and perhaps most fundamentally, what makes a family.
- Darra L. Hofman
Assisted human reproduction (AHR) has been an ever-evolving area of biology since the
first ‘IVF baby’, Louise Brown, born in the United Kingdom in 1978.
AHR technologies
allow individuals to found families despite their reproductive struggles - in vitro fertilisation,
artificial insemination, gamete donation and surrogacy arrangements are just a few of the
mechanisms that allow individuals to reproduce children of their own likeness.
commentators such as Mary O’Connor have noted that Irish legislation has traditionally not
kept pace with the emerging medical developments relating to surrogacy.
This statement,
though relevant, has become less so as Ireland attempts to legislate for many AHR
* Ms. Justice Bronagh O’Hanlon would also like to t hank Annette Hickey, Poe K iely Lanigan Solicitors for
consultation on this paper.
Darra L. Ho fman, ‘Mama’s Baby, Daddy’s Maybe’: A State-by-State Survey of Su rrogacy Laws and Their
Disparate Gender Impact’ (2009) 35 William Mitchell Law Review 449, 450.
See generally in relation surrogacy Craig Dashiell, ‘From Louise Brown to Baby M and Beyond: A Proposed
Framework fo r Und erstanding Surrogacy’ (2012-2013) 65 Ru tgers Law Review 851, 853 857.
See t he Glossary provided by the Joint Com mittee on Health, Report on Pre -Legislat ive Scru tiny of t he General
Sche me of the Assiste d Human Reprodu ction Bill (Ju ly 2019) 5 - 6. See also John Lawrence Hill, ‘What Does it Mean
to be a Parent The Claims of Biology as the Basis for Parental Rights’ (1991) 66 New Y ork University Law
Review 353, 389.
See Mary O’Con nor, ‘When is a Moth er Not a Mother? – The Commiss ioning Mother of an Irish Su rrogate
Child’ (2020) 23(1) Irish Jou rnal of Family Law 14.
[2020] Irish Judicial Studies Journal Vol 4(2)
procedures through the Children and Family Relationship Act 2015 (2015 Act) and the
proposed General Scheme of Assisted Human Reproduction Bill 2017 (General Scheme),
while neighbouring jurisdictions are also in the process of reforming legislation or creating
new legislation to appropriately regulate the unique issues that arise in AHR treatment.
This article aims to provide an overview of assisted conception, a snapshot of surrogacy in
Ireland, detail the necessary procedures for establishing parentage in the age of assisted
conception and provide a brief analysis of surrogacy in the United Kingdom, parts of the
United States, and Ukraine as a comparative analysis of various forms of regulation.
Procreation in The Irish Context
The family is viewed as an institution of paramount importance with specific protections
provided under Bunreacht na hÉireann (the Constitution). Notably, Article 41.1.1° of the
Constitution states that the State recognises the Family as the natural primary and
fundamental unit group of Society, and as a moral institution possessing inalienable and
imprescriptible rights, antecedent and superior to all positive law. Additionally, this
fundamental group is described as ‘indispensable to the welfare of the Nation and the State.
Historically, there was the common belief that the concept of family was intrinsically linked
to one’s ability to procreate and case -law throughout the years has discussed the rights
(although not absolute) of married persons to procreate.
The right to found a family was discussed in cases as varied as McGee v Attorney General
Murray v Ireland.
In McGee, a case involving the criminalisation of contraceptives, O’Keefe P
in the High Court found that [t]he right to marry involves necessarily the right of each spouse
to the society of the other and the right to decide whether to have a family or not; it involves
a right to decide the extent or size of the family.
The Supreme Court took a similar view
and justified the limitation of a family by reference to the importance of sexual relations
between a martial couple under Article 40.3.
It seems as though McGee may be viewed as
an early glimpse of the Irish courts considering the possibility of individuals as opposed to
married couples - being actively involved in the process of regulating their family; a process
going beyond the requirement of sexual intercourse.
In Murra y, the plaintiffs (who were imprisoned) claimed a right to conjugal visits to allow
them to procreate, as the longevity of their prison sentences may have prevented them having
children in the future due to their age. McCarthy J recognised the fact that the right to
procreate children within marriage…is one of the unenumerated rights guaranteed by Article
Article 41.1.2° o f Bu nreacht na hÉireann provides: ‘The State, therefore, guarantees to protect the Family in
its constitu tion and autho rity, as the necessary basis of social o rder and as ind ispensable to the welfare of the
Nation and the State.’
Note the reference t o mother in Article 41.2.2° an d children in Article 41.3.2°(iii).
[1974] IR 284 ( HC).
McGee (n 7) 296.
[1974] IR 284 ( SC) (W alsh J) 312.
See also Andrew Mulligan, ‘From Murray v Ireland to Roche v Roche: Re-Evaluatin g the Constitution al Right
to Procreate in th e Cont ext of Assisted Reproduction’ (2012) 35(1) Du blin University Law J ournal 261, 266

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