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Building Irish Families Through Surrogacy: Medical and Judicial Issues for the Advanced Reproductive Technologies

Eric Scott Sills¹ and Clifford M Healy^2
1Sims International Fertility Clinic, Dublin, Ireland
²Department of Law, University College Cork, Cork, Ireland

Reproductive Health 2008, 5:9doi:10.1186/1742-4755-5-9

Published: 4 November 2008

Commentary - Abstract

Surrogacy involves one woman (surrogate mother) carrying a child for another person/s (commissioning person/couple), based on a mutual agreement requiring the child to be handed over to the commissioning person/couple following birth. Reasons for seeking surrogacy include situations where a woman has non-functional or absent reproductive organs, or as a remedy for recurrent pregnancy loss. Additionally, surrogacy may find application in any medical context where pregnancy is contraindicated, or where a couple consisting of two males seek to become parents through oocyte donation. Gestational surrogacy is one of the main issues at the forefront of bioethics and the advanced reproductive technologies, representing an important challenge to medical law. This analysis reviews the history of surrogacy and clinical and legal issues pertaining to this branch of reproductive medicine. Interestingly, the Medical Council of Ireland does not acknowledge surrogacy in its current practice guidelines, nor is there specific legislation addressing surrogacy in Ireland at present. We therefore have developed a contract-based model for surrogacy in which, courts in Ireland may consider when confronted with a surrogacy dispute, and formulated a system to resolve any potential dispute arising from a surrogacy arrangement. While the 2005 report by the Commission on Assisted Human Reproduction (CAHR) is an expert opinion guiding the Oireachtas' development of specific legislation governing assisted human reproduction and surrogacy, our report represents independent scholarship on the contractual elements of surrogacy with particular focus on how Irish courts might decide on surrogacy matters in a modern day Ireland. This joint medico-legal collaborative also reviews the contract for services arrangement between the commissioning person/s and the surrogate, and the extent to which the contract may be enforced.

Background

Surrogacy describes an alternate means of conception for individuals who are unable to conceive a child naturally. In surrogacy, one woman (surrogate mother) carries a child for another person/s (commissioning person/couple), based on an agreement before conception requiring the child to be handed over to the commissioning person/couple following birth.

The basic idea of surrogacy is an understandably private matter. Yet there is nothing new in the concept of surrogacy, which probably began with civilisation itself. While Biblical references include Sarah (Genesis 16:4) and Rachel (Genesis 30:3), perhaps less well-known allusions to surrogacy date from 1500 B.C. and are found among the artefacts of the Hurrians of Mesopotamia [1]. Certainly surrogacy was practiced in classic Greek society as early as the 4th century B.C. [2], and in medieval Tuscany, one mother's daily correspondence preserved from around the year A.D.1500 provides another perspective of surrogacy [3]. The longest intact personal inscription that survives from ancient Rome (known as Laudatio Turiae–a late 1st century B.C. epitaph) includes a tender reference to surrogacy as antiquity's common-sense remedy to childlessness [4].

Contemporary advances in medical science have taken the application of surrogacy to a new level of sophistication, and over the past two decades surrogacy has attracted legislative attention worldwide. In clinical practice, surrogacy includes arrangements whereby a woman agrees to become pregnant (either by artificial insemination or via embryo transfer), and carry a child to term with the intent to relinquish custody of that child upon its birth to the couple with whom she has made the agreement [5]. This agreement has the practical effect of causing a purposeful conception followed by voluntary surrender of the offspring by the birth mother, or shortly after birth [6].

A surrogate may have a purely altruistic reason for agreeing to carry a child for someone else, but generally this is done in exchange for compensation to the surrogate mother. Recent research has challenged the cultural assumption that "normal" women do not voluntarily become pregnant with the premeditated intent to surrender the child for money [7]. General public acceptance of this is increasing but remains somewhat limited [8]. Regarding the level of support for surrogacy, considerable variation exists across population sub-groups with some of this perception appearing to be influenced by prevailing media portrayals of surrogacy [9].

While generally favourable legislation relating to IVF had appeared in several jurisdictions by the end of the 1980's, this level of acceptance did not initially extend to surrogacy. For example, South Africa, England and Australia had produced essentially negative legislation on surrogacy by 1990 [10]. Even though the United Kingdom's Surrogacy Arrangements Act 1985 (SAA 1985) [11] prohibits payments for surrogacy arrangements, financial compensation and reimbursement of reasonable expenses to the surrogate are considered lawful. This contrasts with the United States model where (depending on the State) a surrogate may be paid for the service of carrying the child to term. The main concern with the SAA is that, even where a surrogate has agreed to carry to term a child which comprises of the gametes of the commissioning couple, under the latter Act, the surrogate will be regarded as the legal parent of the offspring, even though she holds no genetic tie with the child.

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© 2008 Sills and Healy; licensee BioMed Central Ltd.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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