Health Minister Stephen Donnelly has told the Seanad that it would be “unacceptably discriminatory” to ban single men from accessing surrogacy.
He made the comments during a debate in the Seanad on Thursday, as the Assisted Human Reproduction Bill (2022) was discussed at Committee Stage.
The Bill passed through the Dáil without a vote at the end of May, and is set to establish a regulatory framework for domestic and international surrogacy and to oversee assisted human reproduction (AHR) in the State.
The legislation has courted controversy as it would allow those who have been resident in Ireland for two years to hire women from a list of approved countries to serve as surrogates. The Bill outlines the establishment of new legal frameworks and the licensing of agencies engaged in international surrogacy. The legislation is set to grant the “intended parents” legal rights, under the conditions that the child has a “genetic link to at least one” of them.
Although the ban on commercial surrogacy remains, under the Bill, a “reasonable sum” can be offered, sparking concern from opponents that this could create a pregnancy-as-employment situation. Proponents of the Bill have insisted that the range of legal safeguards in place in the Bill, aimed at ensuring that prospective surrogate mothers are not exploited, will prevent such situations from happening.
Speaking on Thursday, Senator Sharon Keogan, an outspoken critic of surrogacy, raised concerns about the potential abandonment of children conceived through surrogacy.
She proposed a number of amendments to the Bill, including that anyone who wishes to avail of the AHR, any surrogacy services or wishes to be a commissioning parent should be required to meet all of the same requirements and standards as a person wishing to adopt a child.
This, she said, would mean specific regulations and penalties relating to surrogacy services and the abandonment of children conceived through surrogacy.
Minister Stephen Donnelly told Senator Keogan that he could not accept any of the 15 amendments proposed to the Bill.
In response, she said the amendments “emphasise the importance of protecting the rights and well-being of children born through surrogacy arrangements and of imposing consequences on individuals who abandon such children.”
An amendment which would impose penalties on individuals who abandon children after availing of surrogacy services would, she said, serve as a deterrent “against negligent and irresponsible behaviour that could harm the child or the birth mother’s well-being.”
“By prohibiting such individuals from offering surrogacy services again, the legislation seeks to prevent further occurrences of child abandonment and to hold accountable those who fail to fulfil their responsibilities as parents.”
There have been multiple documented cases internationally of couples abandoning children after using international surrogates, including the case of a couple, believed to be from Italy, who used a surrogate to have a baby before abandoning the child in another country 1,500 miles away.
The British press, including The Mirror, reported on how the parents travelled to Ukraine in August 2020 after their baby girl was born to a surrogate mother. For reasons unknown, the couple reportedly returned home to Italy leaving the newborn behind in the care of her nanny. Promising to return, they never came back to get the child – with the little girl being raised by the nanny as her own daughter.
However, concerned that the parents may never return and worried about the legal repercussions, the woman contacted the Italian consulate to report that she could no longer afford to raise the child.
Meanwhile, a 2022 report from Seton Hall University detailed a number of cases of child abandonment via international surrogacy.
Senator Sharon Keogan on Thursday said that the delineation of fines and imprisonment for offenders would reflect “the seriousness of child abandonment in the context of surrogacy and underscores the legal consequences faced by individuals who violate these regulations.”
“By offering summary conviction and conviction on indictment options for penalties, the amendments provide a range of consequences based on the severity of the offences and aim to deter individuals from engaging in actions that could harm children born through surrogacy,” she continued.
“The amendments underscore the legislative commitment to protecting the rights of children born through surrogacy, preventing child abandonment and holding accountable individuals who neglect their parental responsibility in the context of surrogacy arrangements.
“By combining legal penalties with ethical standards rooted in international instruments such as the Oviedo Convention, the amendments seek to create a framework upholding the well-being and integrity of children conceived through surrogacy services.”
However, responding, Minister for Health Stephen Donnelly rejected the group of amendments. He said he did not agree with the Senator’s premise that an adoption application involving a child not genetically related is exactly the same as a surrogacy application involving a potential child who will be genetically related to at least one of the intending parents or possibly both of them.
“I am satisfied that we have the balance right as regards the safeguards in place and the requirements to be met by intending parents as part of the dual approval system for domestic surrogacy in order to best protect the rights and welfare of all parties involved,” he insisted.
Further, Minister Donnelly rejected a separate amendment (No 12), stating that it would be “unacceptably discriminatory” to prevent single men from procuring a child through surrogacy.
“Amendment No. 12 seeks to ban single men from accessing surrogacy. This would be unacceptably discriminatory. It is important to note that a single male applicant would have to be genetically related to the child and have to satisfy the regulatory authority that they met all the criteria before their application were approved,” he said.
He also rejected Amendment No. 15, stating that he believed that the offences provision in the Bill adequately dealt with concerns raised by Senator Keogan relating to someone with previous offences against children using a surrogate.
“In particular, it is envisaged that any issues relating to previous offences against children or women would be discovered through the safety of the child assessment. As such, I am not in a position to accept the amendments,” Donnelly said.
Senator Sharon Keogan said she was “very disappointed” that the group of amendments had been rejected.
“I am disappointed that the Minister will not accept amendment No. 15. I have been a foster parent over the years and I can tell him that sexual crimes against children are not exclusive to men; they also applies in the case of women. It is disturbing that he will not accept that, particularly in the context of someone who has been convicted of a crime against a child,” she told Donnelly.
“If the Minister is trying to maintain public trust and confidence in surrogacy services, adherence to strict regulations and standards that prioritise child protection and safety will be required. Implementing restrictions on individuals convicted of child sexual offences demonstrates a commitment to upholding principles of promoting transparency in surrogacy practices.”
She went on to say that children born through surrogacy are among the most vulnerable, and that prohibiting individuals convicted of sexual offences from participating in surrogacy would help to protect these children from harm or exploitation.
She said that allowing individuals with a history of sexual abuse to participate in surrogacy increases the risk of abuse or harm to such children.
“This restriction serves as a preventative measure to reduce the likelihood of such risks and provide for the safety and well-being of the child,” she said of Amendment No. 15.
“Upholding ethical standards and legal regulations in surrogacy is essential to ensuring the integrity of the process and protecting the rights of all parties. That includes the child,” the Independent Senator continued.
“Prohibiting individuals convicted of sexual offences aligns with these standards and reinforces whatever ethical principles are there. Surely there must be some ethical principles relating to surrogacy.
“Surrogacy should prioritise the best interests of the child and ensure a safe and nurturing environment for their upbringing. Excluding individuals with a history of child sexual offences from participating in surrogacy reflects a commitment to safeguarding child welfare and promoting a supportive and healthy family environment.”
Senator Keogan said this would be a crucial safeguard to protect the interests and well-being of children born through surrogacy.
“By prioritising the child’s safety and the legal and ethical standards, the restriction helps uphold the integrity of surrogacy arrangements and ensures a supportive and secure environment for the child’s upbringing,” she told the Minister.
“I am disappointed the Minister would not accept this amendment, or that some safeguarding is not there, in that it would preclude people who may have been involved in and may have committed a sexual offence against a child from this legislation. To tell the truth, I am very disappointed.”
During a Seanad debate on the Bill last week, Donnelly said that it must be passed quickly, due to the likelihood of an upcoming general election. It comes despite warnings from former Special Rapporteur for Children Dr Conor O’Mahony, who had previously called on Irish legislators to “slow down” citing the complexity of the issues involved.