Government recognising commercial surrogacy in all but name

By Dr Angelo Bottone

16th December 2022

The Government has approved a legislative proposal to recognise and facilitate what amounts to commercial surrogacy abroad, a practice banned almost everywhere in Europe because it commodifies babies and exploits low-income women. The Government denies it will recognise overseas commercial surrogacy, but this simply isn’t true.

Once drafted, the new provisions will be part of the Assisted Human Reproduction (AHR) Bill, presented in March and currently still at Committee Stage in the Dáil. Crucially, the law will allow a surrogate mother to be paid “reasonable expenses”. This includes a payment for earnings foregone, which is a fee in all but name. If a woman makes a living by being a surrogate, that makes it a commercial enterprise, especially when you add in other fees including those paid to the facilitating agency.

Notably, the law will not allow agencies in Ireland to be paid a fee, but will allow it overseas. This sort of payment falls under the definition of “commercial surrogacy”, according to the AHR Bill. (section 54) How is that not a huge double standard?

The new legislation will also recognise past surrogacy arrangements, applying criteria that are less demanding compared to those required for future contracts.

Commercial surrogacy is not recognised, or else is expressly banned, in all EU countries because it commodifies children and women. It can also created identity problems for the child also it divides the role of mother into several women (the egg donor, if there is one, the woman who gives birth and the woman who raises the child).
Before the war, Ukraine was the main destination for many Europeans, including Irish, looking to hire surrogates. Others went to Russia. Some of the business has now moved to Georgia and Belorussia.

The Canadian bioethicist, Winifred Badaiki, writes: “Surrogates in Georgia are typically low-income earners, and the intending parents are often middle-class foreigners. The Georgian surrogacy industry has taken advantage of this dynamic to build a thriving industry rife with exploitation. The victims, unfortunately, are the gestational carriers. For some women, in the absence of other options to break free from precarious situations, becoming gestational carriers appears to be their best option at escaping poverty, even if only for a short period”. It is the same in Ukraine and elsewhere.

The AHR Bill‘s list of “reasonable expenses” (section 55) includes any loss of income for a period of up to twelve months due to being unable to work; expenses for accommodation and travelling, for payment of childcare and housework undertaken by other persons; payments for legal advice, counselling, and more.

Such “reasonable expenses” would be a substantial source of income for less wealthy women. What the Bill calls “altruistic surrogacy” can easily be a commercial arrangement in disguise. This is even truer for women living in poor countries, where the Irish state has no means to set and attest standards.

Ireland will become the only country in the world with specific legislation for citizens engaging in surrogacy in other jurisdictions. Currently, there is no international framework to rely on, as for international adoptions for instance, and it is extremely complicated to control standards and regulations abroad. When legal difficulties for the parental recognition of babies born from surrogacy arrangements abroad arise, they are addressed according to the domestic family law, generally through some form of adoption. Ireland will be unique in facilitating with specific legislation such arrangements abroad.

This year, the Norwegian Minister for Children and Families compared this practice to human trafficking and proposed to make foreign surrogacy a criminal offence, as it is the case for the domestic one.

The Italian Prime Minister has also promised to legislate in the same direction.