Prohibiting commercial surrogacy in Ireland

Abstract

I. Introduction

Ireland has recently introduced legislation, the Health (Assisted Human Reproduction) Act 2024, to regulate surrogacy for the first time. The legislation includes provisions relating to both domestic and international surrogacy undertaken by Irish citizens. In respect of both forms of surrogacy, the legislation requires intending parents¹ to obtain approval of the surrogacy agreement via an administrative process before any medical treatment takes place and this is followed by post-birth court proceedings to transfer legal parentage to them by way of a parental order. Engaging in surrogacy that is not ‘permitted’ by the legislation is a criminal offence and bars the intending parents from obtaining the parental order. Included in the requirements for ‘permitted’ surrogacy is a stipulation that the surrogacy must not be ‘commercial’, a term that is strictly defined by the legislation with virtually all payments prohibited as a result. However, the contours of the commercial prohibition differ for those who engage in surrogacy at home and those who do so abroad as payments to intermediaries are permitted in the latter scenario but not the former. This creates something of a two-tier approach to commercial surrogacy whereby nearly all payments associated with surrogacy are strictly prohibited at home but are tolerated where the arrangement takes place in another country.

This article examines Ireland’s approach to commercial surrogacy and considers whether the strict domestic prohibition in respect of this form of surrogacy can be reconciled with the more tolerant international provisions. It begins with an overview of how surrogacy is regulated under the 2024 Act before examining the definition of ‘commercial’ surrogacy contained therein and the exceptions to the prohibition on commercial activities that apply in respect of international surrogacy but not domestic surrogacy. Ultimately, it is suggested that despite the more tolerant international provisions, the 2024 Act may still hamper attempts by Irish intending parents to engage in international surrogacy due to the unworkable nature of the provisions that apply in respect of payments.

1. Terminology

Surrogacy regimes are often categorised as either ‘altruistic’ or ‘commercial’, but these terms are increasingly contested in academic writing as there is no agreed definition of either term and practices that one country regards as ‘altruistic’ may be considered ‘commercial’ in another and vice versa.² The distinction between the two forms of surrogacy is often seen to turn on payments to the surrogate—in ‘altruistic’ surrogacy jurisdictions, the surrogate can be reimbursed for reasonable expenses only,³ while in ‘commercial’ surrogacy, they can receive payment for their role.⁴ This characterisation is imperfect as it suggests that payments and altruism are mutually exclusive; as if one cancels out the other.⁵ It also highlights a double-standard in the understanding of altruism since it is really only the surrogate who is expected to act altruistically—while there are often restrictions on the operations of profit-making surrogacy intermediaries in altruistic surrogacy jurisdictions,⁶ nearly everyone else involved in the surrogacy (doctors, lawyers, counsellors, etc) can be paid for their role notwithstanding the ‘altruism’ underpinning the legal framework.⁷ Indeed, it has been noted that the overall cost of payments to third parties in altruistic surrogacy can often exceed the overall costs involved in commercial surrogacy,⁸ which further blurs the line between the different forms of arrangement.

Fenton-Glynn and Scherpe suggest that very few jurisdictions that regulate surrogacy have ‘truly altruistic’ frameworks.⁹ Instead, they argue that most countries that allow reimbursement of the surrogate’s expenses are better described as ‘compensated’ surrogacy jurisdictions.¹⁰ This introduces a third category for discussion of payment in surrogacy—the compensated framework—which provides a more nuanced nomenclature for the discussion. The term ‘compensated’ surrogacy was also favoured by the Irish Special Oireachtas [Parliamentary] Committee on International Surrogacy ‘to better recognise the compensatory nature of the arrangement’ where expenses are paid to the surrogate.¹¹

The English and Scottish Law Commissions have opined that international surrogacy arrangements are ‘almost invariably commercial.’¹² Canada is noted as an exception to this, it being regarded as having an ‘altruistic’ surrogacy regime that is open to foreign intending parents.¹³ However, others have questioned whether Canada’s surrogacy framework is in fact an ‘altruistic’ one when in practice, they argue, some payments are made to surrogates albeit concealed within the notion of ‘reasonable expenses’.¹⁴ According to Motluck, for example, Canada might be better described as a ‘faux-altruistic’ model due to this practice.¹⁵ Canada is not the only altruistic jurisdiction to receive this sort of negative scrutiny—the UK too has been similarly described as having a ‘façade of altruism’ by another author given that the courts regularly authorise payments to surrogates that go beyond reasonable expenses.¹⁶

This discussion shows that there is very little consensus between scholars or States as to what exactly constitutes an ‘altruistic’ or ‘commercial’ surrogacy regime or where the boundary lies between them. Despite this, commercial surrogacy is often regarded as more ethically problematic than altruistic surrogacy as it is seen to give rise to the exploitation of surrogates and the commodification of children.¹⁷ Regulation is regarded as essential to address the ethical complexities of commercial surrogacy. As was stated by the UK Supreme Court in Whittington Hospital NHS Trust v XX:

While the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements.¹⁸

Similarly, the former United Nations Special Rapporteur on the Sale and Sexual Exploitation of Children has emphasised the need for regulation, noting that commercial surrogacy will not amount to the sale of children where ‘it is closely regulated in compliance with international human rights norms and standards.’¹⁹ At the same time, the Special Rapporteur has opined that most commercial surrogacy regimes are not currently regulated in such a manner²⁰ and, writing in 2024, stated that ‘[m]ost commercial surrogacy remains unregulated, underregulated, or wrongly regulated.’²¹

The Irish legislature has recently come down on the side of regulation in respect of commercial surrogacy and so the Health (Assisted Human Reproduction) Act 2024 now allows Irish intending parents to engage in aspects of commercial surrogacy abroad provided that they do so within the framework set down by the 2024 Act. Notably, this ‘regulation’ only extends to international surrogacy arrangements—virtually all payments are strictly prohibited rather than regulated in respect of domestic surrogacy. This raises the question of what exactly the Irish Government is seeking to achieve under the 2024 Act and whether the ideological stance that underpins the prohibition on commercial surrogacy in the domestic context can be reconciled with the permissive approach that applies to payments in international surrogacy. Beyond considering these questions, this article does not weigh into the general discussion about the moral permissibility or impermissibility of commercial surrogacy, nor does it attempt its own definition of that term. Instead, the focus is on the definition of ‘commercial’ surrogacy adopted in the Health (Assisted Human Reproduction) Act 2024 and the differences between the prohibition on commercial arrangements therein that apply in the domestic and international contexts.

II. The regulation of surrogacy in the Health (Assisted Human Reproduction) Act 2024

The Health (Assisted Human Reproduction) Act 2024 was signed into law in July 2024.²² It regulates surrogacy for the first time in Ireland and contains provisions in respect of domestic and international surrogacy, covering both past and prospective surrogacy arrangements.²³ Under the 2024 Act, a surrogacy arrangement is regarded as ‘international’ where the surrogate has been resident in the surrogacy jurisdiction for at least 2 years, where at least one of the intending parents has been resident in Ireland for at least 2 years and the surrogacy is conducted in accordance with the law of the surrogacy jurisdiction.²⁴ The surrogacy will be considered ‘domestic’ where both the surrogate and at least one of the intending parents have been resident in Ireland for a minimum of 2 years and the embryo transfer takes place in Ireland.²⁵

The legal procedure for undertaking both domestic and international surrogacy is broadly similar under the 2024 Act. For both, intending parents who wish to pursue surrogacy must first acquire approval from a soon-to-be established regulatory authority known as the Assisted Human Reproduction Regulatory Authority (AHRRA).²⁶ The surrogacy will only be ‘permitted’ where it is approved by AHRRA in advance of any treatment taking place and it will only be approved where various criteria are met.²⁷ This includes a requirement that the surrogacy is ‘not a commercial surrogacy agreement,’²⁸ a term that is returned to later. It is a criminal offence for any person to knowingly provide ‘a technical, professional or medical service’ that gives effect or further effect to a surrogacy agreement that is not ‘permitted’ under the legislation²⁹ or to ‘knowingly participate’ or induce participation in such an arrangement.³⁰ Hence, assisted human reproduction (AHR) treatment that gives effect to a surrogacy arrangement can only be provided after AHRRA has approved the surrogacy agreement.

Where a child is born as a result of the surrogacy agreement, Irish law recognizes the woman who gives birth as the legal mother. A post-birth parental order is required to transfer legal parentage to the intending parents.³¹ This order cannot be made earlier than 28 days and not later than 6 months after the birth of the child, but the time period can be extended by the court in exceptional circumstances provided that the extension is in the best interests of the child.³² The surrogate’s consent is required before the order can be granted, though this can be waived in certain circumstances.³³

For international surrogacy, there is an additional requirement for pre-approval of the surrogacy jurisdiction by AHRRA.³⁴ In deciding whether or not to approve a particular jurisdiction, AHRRA must consider a range of factors including the law of the surrogacy jurisdiction and whether or not that law permits commercial surrogacy.³⁵ The 2024 Act does not mandate that approval is refused in respect of a commercial surrogacy jurisdiction—AHRRA must simply ‘have regard to’ this factor.³⁶ At present, it remains to be seen precisely how the country approvals for international surrogacy will operate in practice since the 2024 Act has yet to be commenced at the time of writing. Since the provision does not mandate refusal, a plain language interpretation would suggest that a country may be deemed to be an acceptable jurisdiction for Irish intending parents to engage in international surrogacy notwithstanding the commercial nature of the surrogacy regime. However, it is notable that during the Committee stage debates on the Bill that would later become the 2024 Act, the Minister for Health stated that AHRRA would not grant approval for Irish intending parents to engage in surrogacy in a commercial surrogacy jurisdiction, using the USA as an example of such a location.³⁷

During the pre-legislative debates preceding the 2024 Act, there was much discussion about the perceived perils of commercial surrogacy, particularly commercial surrogacy conducted outside of the State. For example, an issues paper prepared jointly by the Departments of Justice, Health, and Children outlined that:

Commercial surrogacy raises complex ethical issues and concerns about commodification of children and exploitation of surrogate mothers. These issues are heightened in international surrogacy, especially where intending parents from a wealthy country such as Ireland undertake a commercial arrangement with a surrogate mother in a poorer country, or one where the rights of women are less protected.³⁸

In evidence before the Special Joint Oireachtas [Parliamentary] Committee on International Surrogacy, an official representing the Department of Children elaborated on these concerns stating the Department’s view that ‘international commercial surrogacy [raises] concerns about the commodification of children, exploitation of women in poorer countries, the risk of child trafficking and the child’s right to know his or her identity.’³⁹ The official from the Department of Health continued this line of argument noting that, in a commercial surrogacy arrangement, there are ‘concerns and ethical considerations relating to the welfare and commodification of the children involved, as well as the potential risks of coercion and exploitation of financially vulnerable women to act as surrogates.’⁴⁰

In light of these stated concerns, it is perhaps unsurprising that the Health (Assisted Human Reproduction) Act 2024 contains provisions that prohibit commercial surrogacy. What may be surprising, given the focus of the Government officials in the above-mentioned debates on international commercial surrogacy, is the fact that the resulting Act only really prohibits domestic commercial surrogacy. As discussed below, various payments, including those to commercial surrogacy intermediaries, are permitted in the context of international surrogacy. This difference in approach is examined in the following section.

III. The prohibition on ‘commercial’ surrogacy

The 2024 Act regards a surrogacy agreement as ‘commercial’ in nature if any person:

• receives or agrees to receive any payment or other reward in consideration of entering into or giving effect to the agreement,

• offers, makes or gives, or agrees to offer, make or give, any payment or other reward in consideration of entering into or giving effect to the agreement, or

• receives, makes or gives, or agrees to receive, make or give, any payment or other reward in consideration of facilitating the entering into or giving effect to the agreement.⁴¹

The same definition of ‘commercial’ surrogacy applies in respect of both domestic and international arrangements. Some exceptions apply, namely the payment of legal fees and the surrogate’s reasonable expenses, which are permitted notwithstanding the wording of the definition of commercial surrogacy.⁴² Otherwise, it is a criminal offence to engage in any act that falls within subsections (a), (b) or (c).⁴³

The definition of commercial surrogacy in the 2024 Act is broad covering, inter alia, the offer, making, or receipt by any person of any payment or other reward that gives effect to a surrogacy agreement. The inclusion of specific exceptions for the payment of legal fees and the surrogate’s reasonable expenses underlines the fact that all other payments to all other persons involved in the surrogacy are prohibited (since there is no exception created for them). This would seem to include payments to medical professionals who perform the AHR treatment associated with the surrogacy. After all, a clinician who performs the embryo transfer (and associated preparatory medical treatment) will be doing so on the basis of what is set out in the surrogacy agreement, thereby ‘giving effect to’ or at least ‘facilitating… the giving effect to’ the surrogacy agreement by enabling the conception to take place. In fact, the definition of commercial surrogacy is so broadly worded that it could also extend to third parties who are only incidentally involved in the matter. This might include, for example, a taxi driver who transports an intending parent to the fertility clinic for sperm or egg retrieval on the basis that the journey is ‘facilitating the…giving effect to the agreement’ by enabling the extraction of gametes that will be used for the conception of the child.⁴⁴

Under this interpretation, the broad net cast by the definition of commercial surrogacy would mean that only legal professionals would be permitted to charge for services connected to surrogacy, while any clinicians, counsellors, or even taxi drivers would be required to provide services on a wholly voluntary, not-for-profit basis in surrogacy cases. This would create an unworkable situation, not least because Ireland does not provide any public funding for surrogacy.⁴⁵ Only one Irish fertility clinic operates on a not-for-profit basis,⁴⁶ but patients at that clinic are still required to pay fees for services.⁴⁷ Given the broad definition of ‘commercial’ surrogacy in the 2024 Act, even a payment that is merely a reimbursement for costs would seemingly fall foul of the section.

It could be argued that the third party is not ‘giving effect’ to the surrogacy agreement as per the definition of commercial surrogacy simply by performing their professional service, for example, where a clinician performs the embryo transfer to the surrogate. However, if the section is interpreted in this manner, it would have the effect of exempting the clinician from the separate prohibition on providing ‘a technical, professional or medical service’ that ‘give[s] effect or further effect’ to a surrogacy agreement that has not been pre-approved by AHRRA.⁴⁸ During the Committee stage debates on the Health (Assisted Human Reproduction) Bill, the Minister for Health explained that the reference to giving ‘effect or further effect to any agreement’ is ‘about progressing a surrogacy’⁴⁹ and so it clearly covers a situation where medical treatment is provided to enable the conception of the child. Thus, an embryo transfer will ‘give effect’ to a surrogacy agreement and so any payments made to the clinician for this service will violate the commercial surrogacy prohibition.

It is unclear whether the Irish legislature intended to prohibit all third-party payments connected with surrogacy (other than the payment of legal fees) in the manner described above, but it is difficult to read the provision in any other way. After all, if medical fees can be paid notwithstanding the prohibition on ‘all payments’, then surely other profit-making third parties could also be paid for their involvement in surrogacy. This, however, would completely undermine the purpose of the prohibition since, as discussed later, the presence of profit-making intermediaries is a typical hallmark of most commercial surrogacy jurisdictions.⁵⁰ As such, it is suggested that the only logical interpretation of the prohibition on commercial surrogacy as set out in the 2024 Act is that it only allows for legal fees and the surrogate’s reasonable expenses to be paid in domestic surrogacy—all other payments are prohibited.

Under this interpretation, the definition and prohibition of commercial surrogacy in the 2024 Act reads less like a measure that is truly targeted at preventing commercial arrangements and more like a covert attempt to restrict all forms of domestic surrogacy by making it impossible to access the services that are required to undertake it. While every country that restricts commercial surrogacy adopts a different approach to achieve the prohibition, the current author is not aware of any other jurisdiction that makes provision to accommodate surrogacy in its law but then (effectively) precludes its practice by preventing intending parents from paying for the medical treatment associated with it as the Irish legislature has done. For example, in South Africa, the Children’s Act 2005 stipulates that the prohibition of ‘any person’ giving or receiving ‘a reward or compensation in cash or in kind’ in connection with a surrogate motherhood agreement does not include reasonable compensation paid to someone ‘who renders a bona fide professional legal or medical service’ connected to the surrogacy.⁵¹ In New Zealand, the law prohibits the giving or receiving of ‘valuable consideration’ in connection with participation in a surrogacy agreement but creates a specific exception for ‘reasonable and necessary expenses’ relating, inter alia, to counselling services, insemination or in vitro fertilization.⁵² Similarly, in South Australia, the law prohibits ‘payment in any form’ in relation to surrogacy with an exception for ‘reasonable surrogacy costs’, which include ‘medical, counselling or legal services’ provided in relation to the lawful surrogacy agreement.⁵³ While this is not an exhaustive comparative analysis, it is notable that in each example here the law creates a specific exception allowing for the payment of reasonable medical fees notwithstanding the general prohibition on payments connected to surrogacy. By contrast, the Irish law only provides an exception for the payment of legal fees and the surrogate’s reasonable expenses, thereby signifying an intention to exclude all other professional payments.

The restrictive effect of the Irish prohibition of commercial surrogacy will undoubtedly stymie domestic surrogacy since very few third parties will be willing to provide services without charge. The broad definition of commercial surrogacy may also have an impact on the domestic services available to Irish intending parents who seek to engage in commercial surrogacy in another country. For example, it may prevent Irish fertility clinics from helping Irish parents to export their gametes or embryos to a commercial surrogacy jurisdiction since to do so would be to ‘facilitate’ a commercial surrogacy arrangement. This issue arose recently in the UK where some clinics interpreted the Surrogacy Arrangements Act 1985 as prohibiting them from engaging in this practice, prompting the Human Fertilisation and Embryology Authority (HFEA) to issue specific guidance on this point.⁵⁴ In Australia, the prohibition of ‘facilitating’ commercial surrogacy has prevented some Australian medical practitioners from ‘engaging in even basic information-giving to their patients’ about fertility treatment and preparatory care.⁵⁵ Hence, it may well be the case that the restrictive Irish provisions will have a similar chilling effect on AHR treatment where it is associated with international commercial surrogacy. As discussed in the following section, certain exceptions to the prohibition of commercial surrogacy apply in respect of international surrogacy but, as argued below, the somewhat muddled approach makes it likely that this form of surrogacy will be also restricted in practice with few intending parents able to access the ‘permitted’ international surrogacy that is envisaged by the 2024 Act.

1. Payments in international surrogacy

In the case of international surrogacy, the 2024 Act maintains the position that commercial surrogacy is to be avoided and adopts the same definition of commercial surrogacy as applies in the domestic context.⁵⁶ According to the Minister for Health, the prohibition of commercial surrogacy is ‘one of the central tenets of the scheme.’⁵⁷ However, various exceptions to the prohibition of commercial surrogacy are provided for under the 2024 Act where the surrogacy takes place abroad.⁵⁸ These exceptions serve to underline the fact that these matters are prohibited in the domestic context, thereby highlighting the disparity that exists between the nature of the ‘prohibition’ of commercial surrogacy at domestic and international levels. The most notable exception that applies in international surrogacy but not domestic surrogacy concerns payments to intermediaries, which are addressed by section 97 of the 2024 Act. This provision allows for fees to be paid to an intermediary, provided that this is in accordance with the law of the surrogacy jurisdiction and that the fees are ‘reasonable’ having regard to all the circumstances, including:

• the nature of those services,

• the level of fees paid in that jurisdiction for services (if any) comparable to those services, and

• where a legal, medical, or counselling service (or any combination thereof) related to the permitted international surrogacy is provided in that jurisdiction to those intending parents (or, in the case of a single intending parent, that intending parent) through the intermediary, the relevant fees as a proportion of the combination of the relevant fees and the professional fees paid for the legal, medical, or counselling service (or, as the case may be, the combination of the professional fees paid for the legal, medical, and counselling services).

For the purpose of the 2024 Act, an ‘intermediary’ is defined as

any person (including a body corporate or unincorporated body) who lawfully provides, in that jurisdiction, a service (not being the direct provision of a legal, medical or counselling service) in relation to a permitted international surrogacy.⁵⁹

This definition focuses on the indirect provision of professional services. This means that a fertility clinic itself would not be regarded as an ‘intermediary’ where the clinic directly provides (as is usually the case) medical treatment to enable the conception of a child through surrogacy. This is notable because, as outlined above, section 97 allows for fees to be paid to a surrogacy intermediary and makes reference to the provision of legal, medical, or counselling services through the intermediary, but otherwise adopts the same strict definition and prohibition of ‘commercial’ surrogacy as applies in the domestic setting.⁶⁰ As outlined above, this prohibition extends to all payments that give effect to the surrogacy agreement, with an exception created for the payment of legal fees and the surrogate’s reasonable expenses.⁶¹ In line with the interpretation advanced in the previous section, the prohibition would appear to extend to payments made to a foreign fertility clinic for medical services in international surrogacy. On this reading, Irish intending parents would not be able to directly pay their clinic for any such services without violating the prohibition on commercial surrogacy.

However, in the international context, the prohibition of commercial surrogacy must be read in line with the section 97 exception for intermediaries. Section 97 makes reference to ‘fees paid in [the surrogacy jurisdiction] for services’ that are comparable to the services of the intermediary; to the provision of legal, medical, or counselling services ‘through the intermediary’; and to the payment of ‘professional fees’ for those legal, medical, or counselling services.⁶² This provision sits uneasily with the broad definition and prohibition of commercial surrogacy by suggesting that certain third parties can be paid for their services in international surrogacy.

Section 97 stipulates that payments to the intermediary are only permitted where they are ‘reasonable’ having regard to the fees paid for other professional services in the surrogacy jurisdiction and to the amount paid to the intermediary as a proportion of the total payments made for professional services.⁶³ This indicates that there is no limit on the fees that can be paid either to the intermediary or the other third-party professionals so long as the fees paid are commensurate to one another. By contrast, as outlined above, the definition of commercial surrogacy appears to prohibit all third-party payments other than legal fees in the context of domestic surrogacy.

Hence, there is a significant divergence between the domestic prohibition of commercial surrogacy and the international ‘prohibition’: in domestic surrogacy, payments to third parties are confined to those made to legal professionals, but, in international surrogacy, legal, medical, and counselling fees can be paid along with the fees of the intermediary. While payments to the surrogate are prohibited in respect of both domestic and international arrangements,⁶⁴ the broad range of third-party payments that can seemingly be made in international surrogacy arguably undermines the prohibition of commercial surrogacy and creates a two-tier approach to the issue of payment in respect of domestic and international surrogacy.

Intermediaries in surrogacy are sometimes referred to as surrogacy ‘agencies’ and their primary role is to establish relationships between intending parents and surrogates and to arrange professional services for the intending parents in the surrogacy country,⁶⁵ although the role of the intermediary differs between countries.⁶⁶ The involvement of intermediaries in surrogacy is a contentious matter as it often raises concerns about the commercialisation of the surrogacy process.⁶⁷ While in some countries, such as the UK, intermediaries offer support on a not-for-profit basis, other countries allow commercial, profit-making intermediaries to operate.⁶⁸ The latter agencies are often regarded as the drivers of ‘surrogacy markets’ due to the large profits generated.⁶⁹ Depending on the legal framework in which they operate, the intermediary may also be responsible for physically or legally transferring the child to the intending parents. Where this transfer occurs on foot of payment to the intermediary, there are concerns that it may constitute the sale of the child.⁷⁰ The operations of intermediaries in some countries also raise questions about the treatment of surrogates, with some reports of forced abortions and caesarean sections, among other problematic practices.⁷¹ There are also concerns that some profit-making intermediaries may ‘prey upon’ vulnerable women to induce them to act as surrogates and on prospective intending parents who are ‘desperate’ to have a child.⁷²

At the same time, the involvement of an intermediary is, in many cases, the only practical way for intending parents and potential surrogates to find and meet one another.⁷³ In this context, the payment of fees to the intermediary may be more palatable as it ensures that the agency has sufficient resources to support all stakeholders through the surrogacy process, which may result in ‘more successful outcomes’.⁷⁴ Indeed, it has been observed that relationships between intending parents and surrogates tend to break down more frequently where they do not involve professional intermediation.⁷⁵

The debates on the Health (Assisted Human Reproduction) Bill do not shed light on precisely why the Irish legislature chose to allow payments to international intermediaries notwithstanding the prohibition of commercial surrogacy. There was, however, some discussion of payments in this context with a concern raised that allowing fees to be paid to intermediaries would open up ‘the possibility of commercial surrogacy through the back door.’⁷⁶ In response, the Minister for Health noted that the question of intermediaries’ fees would be a matter for the new AHRRA and, while those fees are not defined in the legislation, they would have to be commensurate with other professional fees in the surrogacy jurisdiction. According to the Minister:

We all know what we are trying to guard against here, which is that an intermediary charges an amount that covers them and provides their profit and then contains a hidden payment to a surrogate.⁷⁷

The Minister was confident that AHRRA would be able to identify any payment that is ‘completely out of whack’ and address it accordingly.⁷⁸

Looking at this exchange, it would seem that the main concern for the Minister was not the profit-making activities of surrogacy agencies but rather the possibility that a concealed payment might be made to a surrogate. By focusing on the payment to the surrogate, the Minister’s response spotlights this as the defining, problematic feature of commercial surrogacy in the eyes of the Irish state. While many other jurisdictions may adopt this same stance,⁷⁹ the Minister’s response seems to overlook the fact that the 2024 Act defines ‘commercial’ surrogacy in a way that covers all payments connected to the surrogacy arrangement (other than legal fees and the surrogate’s reasonable expenses). The provision allowing payments to be made to intermediaries applies ‘[n]otwithstanding’ the prohibition on commercial surrogacy⁸⁰ or, in other words, as an exception to the prohibition of commercial surrogacy. The purpose of the provision is to allow Irish intending parents to engage in surrogacy abroad that would otherwise be regarded as ‘commercial surrogacy’ in the absence of the section 97 exception. In this context, it is difficult to regard the provision allowing for payments to be made to intermediaries as anything other than a ‘back door’ to commercial surrogacy.

Of course, commercial surrogacy is not solely defined by the presence of profit-making intermediaries. The use of a contractual system may also be regarded as a hallmark of commercial surrogacy and one that is viewed negatively as it typically allows for the surrogacy agreement to be enforced against the surrogate.⁸¹ The 2024 Act guards against this issue by stipulating that, in respect of both domestic and international surrogacy, the surrogacy agreement is not enforceable by or against any person except in relation to payment of the surrogate’s reasonable expenses.⁸² This can be regarded as an extension of the prohibition of commercial surrogacy as it ensures that surrogacy does not operate on a contractual basis and prevents Irish intending parents from engaging in surrogacy under such a system. As such, this aspect of commercial surrogacy is shut off, even if payments (arguably the more typifying feature of a commercial surrogacy regime) are permitted in respect of international surrogacy.

In respect of those payments, it is difficult to see how AHRRA could identify one that is ‘completely out of whack’ as stated by the Minister for Health.⁸³ While the Minister correctly noted that AHRRA will provide some oversight of the fees paid to the intermediary, he seemed to overlook the fact that AHRRA’s remit in respect of payments in international surrogacy is confined to the pre-approval stage, at which point a mere ‘estimate’ of fees is required.⁸⁴ AHRRA does not have a role in scrutinising the fees actually paid after the surrogacy agreement has concluded. Instead, that task falls to the Irish court responsible for determining the post-birth parental order that is needed to transfer legal parentage to the intending parents. The application for the post-birth parental order must be accompanied by ‘particulars of the relevant fees’ paid to the intermediary and particulars of the expenses paid to the surrogate ‘regardless of whether or not they form part of the relevant fees.’⁸⁵ Section 97 distinguishes between ‘relevant fees’, which are paid to the intermediary and ‘professional fees’, which are paid for legal, medical or counselling services. Notably, particulars of those ‘professional fees’ do not feature in the list of proofs for the grant of the parental order set out in the legislation.⁸⁶ Hence, a parental order could be granted without the court having sight of the figures. This creates a difficulty since section 97 requires that the fees paid to the intermediary are ‘reasonable’ having regard to the other fees paid.⁸⁷ Without sight of the particulars of the professional fees, the court will be unable to conduct this evaluation and certainly would not be in a position to spot a wayward payment as suggested by the Minister for Health.

It is also worth mentioning the fact that different professionals, of course, charge different professional fees. A senior lawyer, for example, will charge more than a junior lawyer and a medical consultant will charge more than a medical intern. Moreover, given the differences between the nature of the professions and services provided, it is very likely that there will be general differences in medical fees and legal fees associated with surrogacy irrespective of the stature of the particular professional involved. The 2024 Act seems to ignore this and, by requiring that all professional fees are commensurate with one another, seems to encourage anti-competitive pricing models as the different professionals may need to liaise to ensure that the fees charged to Irish intending parents are commensurate so as to meet the requirements of the 2024 Act. Otherwise, standard pricing that deviates between the professions may mean that payments to the intermediary are regarded as ‘unreasonable’ in the eyes of the Irish court.

Ultimately, however, it could be the case that the matters discussed above will prove to be irrelevant in practice as the prohibition of payments being made to the surrogate may frustrate any actual attempts by Irish intending parents to engage in international surrogacy. The 2024 Act stipulates that the surrogate may only receive reasonable expenses, which are tightly defined in the legislation, and may not receive payment beyond this.⁸⁸ A difficulty is that very few surrogacy jurisdictions that are open to foreign intending parents operate on this basis.⁸⁹ Greece and Canada are possibly the only jurisdictions that meet the required criteria.⁹⁰ However, Greece does not allow same-sex couples to engage in surrogacy,⁹¹ while Canada is facing huge over-demand for services,⁹² which has led to attempts to restrict international surrogacy undertaken by foreign intending parents in some provinces.⁹³ Moreover, both jurisdictions restrict the operations of profit-making surrogacy intermediaries—in Greece, all surrogacy intermediaries are strictly prohibited,⁹⁴ while in Canada, the law prohibits payments being made to intermediaries for arranging the services of a surrogate⁹⁵ (although it has been noted that this law is rarely enforced and payments are regularly made⁹⁶).

The restrictions on intermediaries in both Greece and Canada will undoubtedly create issues for prospective Irish intending parents by making it more difficult for them to find and meet a surrogate in their selected surrogacy country. Moreoever, the 2024 Act could be interpreted as requiring intending parents engaging in international surrogacy to use the services of a surrogacy intermediary in order to access and pay for medical and counselling services since section 97(b)(iii) refers to the provision of and payment for such services ‘through the intermediary’.⁹⁷ Under this reading, intending parents availing of surrogacy in Greece would have no way of engaging a Greek fertility clinic in a manner that is compliant with the 2024 Act as intermediaries are not permitted to operate. This would leave Canada as the only viable jurisdiction for Irish intending parents to engage in international surrogacy. While surrogacy in Canada will be an attractive option for some, it will not suit every intending parent for a variety of reasons ranging from cost to geographical distance⁹⁸ to the aforementioned existing burden on surrogacy services⁹⁹ and so it cannot be taken for granted that all Irish intending parents will want to or be able to engage in surrogacy in that jurisdiction.

While it remains to be seen how section 97 will be interpreted by both AHRRA and the Irish courts, the above discussion suggests that the main issue created by the 2024 Act may not be the opening of a ‘back door’ to commercial surrogacy but rather the closing of any door to permitted international surrogacy when the practical implications of the regulation are considered. While international surrogacy is available on paper, the tangle of unworkable provisions that apply in respect of payments seem likely to frustrate its use in practice. It is not anticipated that Irish intending parents will stop accessing international surrogacy as a result of these provisions but simply that many will be unable to access international surrogacy that is ‘permitted’ under the 2024 Act and will instead engage in international surrogacy outside of the regulated context.

Engaging in any surrogacy that is not ‘permitted’ by the 2024 Act is a criminal offence,¹⁰⁰ but international experience shows that such sanctions are not always effective and/or enforced.¹⁰¹ Research with Australian intending parents,¹⁰² for example, has found that neither criminal prohibitions nor the denial of legal parentage halted international commercial surrogacy, with the laws instead regarded as ‘abstract technicalities’ by intending parents who had engaged in international surrogacy.¹⁰³ In research conducted by Jackson and others, intending parents were found to have taken a ‘calculated gamble’ in accessing commercial surrogacy abroad in circumstances where they were aware of the domestic prohibitions on doing so but also understood that no other intending parents had been prosecuted under them.¹⁰⁴ As surmised by Australia’s Committee on Social Policy and Legal Affairs:

The evidence is clear that extra-territorial offences for engaging in commercial surrogacy have not worked to deter Australians from travelling overseas to use surrogacy services. In the absence of a consistent national ban, credibly enforced, there is little likelihood that this will change, and Australians will continue to use offshore commercial surrogacy services.¹⁰⁵

It remains to be seen whether the criminal sanctions in the 2024 Act will be ‘credibly enforced’ as the legislation has yet to be commenced. Enforcement raises children’s rights issues where it results in imprisonment of the intending parents as the children are then legally and practically deprived of the parent–child relationship. Around the world, domestic altruistic surrogacy systems struggle to meet demand, with many intending parents pushed towards international surrogacy where they are unable to find a domestic surrogate.¹⁰⁶ Given its small geographical size, the situation in Ireland is unlikely to be any different. Hence, it is anticipated that international surrogacy will continue to be a popular route to parenthood for Irish intending parents once the 2024 Act is commenced.¹⁰⁷ Irish intending parents who cannot access ‘permitted’ international surrogacy for any of the reasons outlined in this article are very unlikely to simply give up their dreams of becoming parents. They will instead engage in ‘unpermitted’ commercial international surrogacy, with all of the law-breaking baggage that this entails.

IV. Conclusion

The Health (Assisted Human Reproduction) Act 2024 is premised on the idea that commercial surrogacy should be prohibited, this being ‘one of the central tenets of the scheme.’¹⁰⁸ In respect of domestic surrogacy, the legislation has largely achieved this aim but, in doing so, has likely thwarted the vast majority of domestic surrogacy arrangements by preventing any payments from being made to third parties other than legal professionals. Given that Ireland does not currently offer any public funding for surrogacy, the broad prohibition of payments will make it impossible for domestic surrogacy to take place as intending parents will be prohibited from paying fertility clinics to conduct the relevant AHR treatment.

In international surrogacy, the ideology underpinning the prohibition of commercial surrogacy is more confused: payments to surrogates beyond reasonable expenses are prohibited but a range of other payments, including payment of intermediaries’ fees, are permitted. This highlights an internal contradiction in the law whereby a different approach is adopted to commercial surrogacy in the domestic and international contexts. In essence, certain aspects of commercial surrogacy are tolerated provided that they take place away from Irish shores. This alone imbues the law with hypocrisy, but it is not the only double standard that applies. Equally problematic is the fact that the law expressly allows intermediaries to ‘profit’¹⁰⁹ from surrogacy notwithstanding the prohibition of commercial surrogacy, while a surrogate may only receive reasonable expenses for their role and is subject to criminal sanction should they accept a greater sum. If the reasoning is that the absence of payment insulates the surrogate from exploitation,¹¹⁰ one must wonder how a law that enables other actors, but not the surrogate, to ‘profit’ from the surrogate’s gestational services achieves this aim.

In the Committee stage debates on the Health (Assisted Human Reproduction) Bill, concerns were raised that the provisions on international surrogacy would open up a ‘back door’ to commercial surrogacy.¹¹¹ Despite assurances given by the Minister for Health, this is precisely what has been achieved as Irish intending parents are permitted to engage the services of profit-making intermediaries and other third-party professionals in international surrogacy. However, as this article has argued, the prohibition of payments being made to surrogates and the reference to professional services being engaged ‘through the intermediary’ may ultimately restrict the use of international surrogacy in practice such that very few intending parents will be able to access the version of international surrogacy that is envisaged by the legislation. In this way, the inconsistencies and hypocrisy in the legislation noted above may actually never come to fruition as the legislation may well have achieved a ‘back door’ exclusion of international surrogacy whereby it is available on paper but severely restricted in reality.

Funding

There is no funding to report.

Conflict of interest statement. There are no conflicts of interest.

Ethical approval

Ethical approval was not necessary for this research.

Footnotes