Abstract
Irish commissioning couples are now accessing cross-border surrogacy facilities as a means of family formation. However, Ireland has no specific legislative or regulatory provisions in place thus far, to deal with domestic surrogacy let alone cross-border surrogacy and has a meagre body of case law. Furthermore, although Part 6 of the General Scheme of the Assisted Human Reproduction Bill 2017 proposes to provide for domestic, altruistic, non-commercial surrogacy, there is no provision for cross- border surrogacy.In light of the conflict of laws between the state of birth and the receiving state, Ireland's cross-border surrogate child could be 'marooned, parentless and stateless'1 in a foreign jurisdiction for a protracted period, without the right to the legal parentage of the commissioning couple and the rights that flow from that status. Moreover, this child's constitutional and human rights can be violated, despite Ireland having given constitutional protection to the rights of the child and the family, and having ratified the UN Convention on the Rights of the Child and incorporated the European Convention on Human Rights into law.
Thus the question arises as to how other jurisdictions address the issue of surrogacy, and in particular cross-border surrogacy, and this thesis engages in a comparative analysis of surrogacy legislation, regulations and case law in England and Wales, Greece and Australia. The current system in place in England and Wales appears to be the template for much of Ireland's proposed surrogacy legislation. Greece is the only European country that provides a complete and comprehensive regulatory framework for surrogacy and Australia's strict regulatory surrogacy procedures, like those proposed for Ireland, has led to an increase in the number of Australians seeking surrogacy overseas.
The rights of the Irish cross-border surrogate child should be established in domestic legislation. However, in light of the conflict of laws relating to cross-border surrogacy, it is clear that some form of international consensus is also required and this gives rise to the need for an international instrument which will clarify and regulate international surrogacy arrangements, legal parentage, and the rights of commissioning parents, the surrogate mother and most importantly the cross-border surrogate child. In addition, it is essential that the right of the cross-border surrogate child to genetic identity where donor sperm or ova are used, is recognised in the establishment of an international database which could be incorporated in a future international instrument.
| Date of Award | Dec 2019 |
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| Original language | English |
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