Part 5 deals with surrogacy arrangements.
Head 17: Surrogacy arrangements
This Head provides that a surrogacy arrangement is not an enforceable contract except in relation to the payment of the birth mother’s reasonable expenses, and then only if the arrangement was made before the birth mother became pregnant – this is to ensure that commissioning parents cannot resile from any financial guarantee made to the birth mother after she becomes pregnant, and likewise that she cannot seek additional payment after becoming pregnant.
Head 18: Prohibition on payment for surrogacy
This Head prohibits people from making or receiving payments in relation to a surrogacy arrangement. It is intended to prevent an intending surrogate from receiving or agreeing to receive payment (other than the birth mother’s reasonable costs), to prevent intending parents from offering or making payments for someone to enter a surrogacy agreement with them, and to prevent any intermediaries from offering or making payments or receiving or agreeing to receive payments in relation to a surrogacy arrangement. It is not intended to preclude payments to legal practitioners for giving legal advice, or to medical practitioners for treating the intending parents and / or the surrogate in relation to assisted reproduction procedures, etc.
Head 19: Prohibition on surrogacy advertisements
This Head prohibits publication of advertisements concerning entering a surrogacy arrangement.
Head 20: Minimum age for surrogate mother
Legislation in some jurisdictions sets out minimum ages for a surrogate mother, to provide safeguards for any potential surrogate mother. The minimum age proposed here is 24: this is so that an intending surrogate is likely to have a reasonable degree of maturity and some life experience. More importantly, it is a requirement that the intending surrogate already have at least one child of which she has custody. This is to ensure that she is fully aware of the possible physical and emotional effects of pregnancy and child-birth and has the experience of bringing up her own child. Further, there is always some degree of risk associated with pregnancy (albeit usually very small, in Ireland), and it may be desirable to ensure that if complications should compromise the intending surrogate’s future fertility this should not have the effect of forcing her to be childless. Subhead (2) requires that for a pre-surrogacy arrangement, an intending surrogate shall have been no less than 18 years old, so that as a minimum she was an adult under Irish law when making the arrangement.
Head 21: Minimum and maximum ages for parenting through surrogacy
Legislation in some jurisdictions sets out minimum ages for intending parents under a surrogacy arrangement. The minimum age criterion is intended to ensure a certain minimum level of maturity. A maximum age is also suggested, to increase the likelihood that at least one intending parent will live well into the child’s adulthood.
Head 22: Legal advice relating to surrogacy
Subheads (1) and (2) provide that each party to a surrogacy arrangement must obtain legal advice before making the arrangement so that they will fully understand the consequences of the arrangement for them, and that the birth mother and the commissioning parents must obtain legal advice from separate and independent legal practitioners. This is to ensure that there is no conflict of interest which might result in a party to the arrangement being less well advised. Subhead (3) allows the court to consider as a factor that one of the parties did not obtain proper legal advice when making an order under the Act. 43 Subheads (4) and (5) make additional provision concerning applications under Head 13. Where only one intended parent makes an application for a declaration where the arrangement had included 2 intended parents, the court may have regard to that fact and the reasons for it – which could include break-up, death, incapacity – and may direct that the other party (if living) be put on notice of proceedings. This is a safeguard for the benefit of all parties, including the child, but particularly for an intending parent who is not a party to an application.
Head 23: Offences and penalties
Subhead (1) establishes that it is an offence to make or agree to make or receive or agree to receive any payment in relation to a surrogacy arrangement which is prohibited under Head 18. The following persons may be guilty of an offence: a surrogate or intending surrogate, intending / commissioning parents, and any intermediary. It is also an offence to publish or cause to be published certain advertisements relating to surrogacy prohibited by Head 19. Subhead (2) establishes the relevant penalties. 45 Subheads (3) to (5) make certain provisions in relation to where an offence is committed by a body corporate (such as an intermediary or a publisher). Subhead (6) is a standard provision relating to the timeframes within which proceedings are brought.