Naoise McFarlane Ginnell, LLM candidate and LLB graduate Trinity College Dublin.
Naoise McFarlane Ginnell is a recent graduate from Trinity College Dublin where she completed her undergraduate degree in Law and Political Science. Her main areas of interest include feminist legal theory, international human rights law, and environmental law. She has also previously worked in asylum and immigration law. Naoise plans to undertake an LLM in International Law in the upcoming academic year.
Abstract:
In 2024 the Oireachtas enacted the Health (Assisted Human Reproduction) Act, a piece of legislation which aimed to provide guidance on the previously unregulated practice of Assisted Human Reproduction (AHR), including surrogacy, in Ireland. While the 2024 Act was a much-welcomed development in the area of AHR, not least due to the clarity it finally brought to those wishing to engage with the practice, it was not without its critics. This paper discusses one such criticism which has been levelled at the 2024 Act, that being the blanket ban on commercial surrogacy the Act provides for. In discussing the ban through the lens of women’s rights, the rights of the child, and the rights of the family, this paper argues that an outright ban on commercial surrogacy only serves to further entrench the abuse of rights the 2024 Act purports to protect against. Instead, the need for the strict regulation of commercial surrogacy agreements is proposed as a more proportional approach to the protection of basic rights within these agreements.
Introduction
Surrogacy, a form of Assisted Human Reproduction in which a surrogate woman ‘carries a pregnancy for a commissioning couple or individual,’[1] has become an increasingly prominent form of family formation in Ireland, particularly for those dealing with infertility and LGBTQI+ individuals.[2] Despite this, the rights and legal status of the surrogate, the intending parents, and the child born as a result of the agreement were, until recently, not formally defined in Irish law.[3] While some guidance could be found in cases relating to legal parentships, such as the case of An t-Ard Chláraitheoir,[4] the lack of concrete legislation has led to the birth of complex legal issues regarding both the status of children born through surrogacy and difficulties realising the intentions of both the surrogate and the intending parents.[5]
In recognition of these challenges, the Oireachtas, after much deliberation,[6] enacted the Health (Assisted Human Reproduction) Act 2024 (“2024 Act”),[7] which provides for the extensive regulation of both international and domestic surrogacy, including a near-absolute ban on commercial surrogacy.[8] While the act has been largely welcomed for the clarity it provides for those who wish to or have already engaged in surrogacy in Ireland,[9] the 2024 Act has also been met with criticism leading to suggestions that the Act be amended.[10] While these criticisms have been wide-ranging, this paper focuses on the prohibition on commercial surrogacy contained in the 2024 Act, arguing that the prohibition has the potential to lead to the erosion of the fundamental rights of the surrogate woman, children born as a result of the surrogacy arrangement and the intending parents. As such, a move away from prohibition towards the regulation of commercial surrogacy in any amended legislation is recommended.
The Prohibition on Commercial Surrogacy
The prohibition on commercial surrogacy, defined in the 2024 Act as covering ‘inter alia, the offer, making, or receipt by any person of any payment or other reward that gives effect to a surrogacy agreement,’ has been remarked as being the ‘central tenet’ of the Act.[11] It provides that all expenses in excess of those defined as reasonable as assessed by the Assisted Human Reproduction Regulatory Authority (“AHRRA”), payments for legal advice, or in the case of international surrogacy, the use of intermediaries, are punishable as a criminal offence.[12] It is submitted here, however, that such a prohibition causes far more damage than it prevents.
- The Rights of Women
The prohibition of commercial surrogacy in the 2024 Act stems largely from a conviction held by the legislature that such arrangements exploit the reproductive potential of women,[13] forming part of a wider argument on the perceived threat of surrogacy to women’s rights.[14] Commercial surrogacy specifically, it is claimed, commodifies women’s reproductive organs, enabling access to and control of their bodies.[15] Such an argument is especially potent when it comes to socio-economically disadvantaged women, in countries such as India,[16] who are encouraged to enter into commercial surrogacy agreements often without their informed consent or willingness in order to respond to external economic or third-party pressures.[17] This has led to a push-back against the practice, with the 1984 UK Warnock Report for example recommending that women should not be able to use their uterus as an ‘incubator’ for financial profit.[18]
It is submitted here, however, that the 2024 Act’s prohibition on commercial surrogacy negatively impacts women’s rights. Particularly relevant here are international legal instruments such as the Article 12 of the Convention on the Elimination of Discrimination Against Women,[19] Article 7 and 8 European Convention of Human Rights,[20] and guidelines from the International Federation of Gynecology and Obstetrics,[21] which emphasize a woman’s right to privacy, reproductive autonomy, reproductive healthcare, bodily integrity and self-determination, amongst others.[22] In viewing commercial surrogacy as being inherently exploitative, rather than potentially exploitative, the Act fails to balance the competing interests of preventing exploitation and protecting these fundamental rights, excessively and unreasonably interfering with a woman’s right to choose how she uses her own body.[23] Commercial surrogacy is directly linked with exploitation, and altruism with autonomy, failing to consider that the former can be a self-valued, autonomous choice of the surrogate, and the latter potentially exploitative.[24] The fact that a woman can enter into a surrogacy agreement by her own volition is ignored.[25]
It is submitted that regulation is, in this respect, a far more reasonable, targeted response to preventing exploitation, ensuring as far as possible that a surrogate woman is acting on her own volition, while simultaneously upholding her bodily integrity, her reproductive autonomy, and privacy.[26] Instead of focusing on whether a surrogacy agreement is commercial in nature, the informed, voluntary consent of a potential surrogate, the importance of which was recognized by the European Court of Human Rights (“ECtHR’’) in V.C v Slovakia,[27] should be central.[28] While there are essential provisions highlighting the indispensability of informed consent in the 2024 Act, specifically in sections 25 and 87,[29] what is submitted here is that, instead of applying general assumptions of exploitation in commercial surrogacy cases, this consent alone should be decisive.[30] The AHRRA should assess domestic agreements for exploitation based on the specific facts of the case before them, concentrating on informed, voluntary consent and autonomy, and only granting pre-approval for international surrogacy arrangements in countries that strictly regulate consent.[31] The commercial nature of the agreement should only be an element of this assessment, as endorsed by the UK Supreme Court in Whittington Hospital,[32] where it was held that ‘while the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements.’[33] Rather than the ‘only practice’ framework that has ‘shackled every woman whose version of autonomy and bodily integrity does not match that of the Department of Health,’ regulation provides for a targeted, ‘best practice’ approach.[34]
- The Rights of the Child
Turning to children born from surrogacy agreements, this section examines the implications of the prohibition on commercial surrogacy in the 2024 Act on the rights of the child. The discretion of the courts in the post-birth stage to refuse to issue a parental order and recognize the parental relationship where it is found that a child was born as a result of a commercial surrogacy arrangement is particularly relevant.[35]
The right to privacy under Article 8 of the European Convention on Human Rights (“ECHR”),[36] is perhaps most at risk as a result of this provision. As determined by KK v Denmark,[37] the lack of a legal parental relationship with a child’s intended mother risks placing them ‘in a position of legal uncertainty regarding their identity within society,’ contravening Article 8.[38] This relates to Article 7 and 8 of the Convention on the Rights of the Child (“CRC”), which specifically provide for a child’s right to ‘know and be cared for by his or her parents,’ and to ‘preserve his or her identity,’[39] held in Jaggi to form an ‘integral part of the notion of private life.’[40] The right to non-discrimination under Article 2 CRC,[41]which places an obligation on the state to protect children born through surrogacy from discrimination based on their or their parent’s status, is also contravened in this regard, as are Article 1 and Article 14 of the ECHR.[42]
Accordingly, it is submitted here that rather than enabling Irish courts to refuse to recognize parent-child relationships due to the commercial status of their surrogacy arrangement, the law should be reformed to place the ‘best interests’ of the child at the heart of the decision in making the parental order, taking into account a wide range of factors including the specific facts of the case before them, and the rights of the child.[43] This is in accordance with Principle 6 of the Verona Principles, aimed at the protection of children born from surrogacy agreements, which states that the best interests of the child ‘shall be the paramount consideration in all decisions concerning legal parentage and parental responsibility related to a child born through surrogacy.’[44] This approach has been adopted by the ECtHR in KK,[45] and has been recognised as being of merit by the Irish courts in cases such as Adoption Authority of Ireland,[46] which have emphasised the need for a change in Irish public policy.[47]
Nonetheless, the rigid stance taken by the 2024 Act against the recognition of the intending parents in commercial surrogacy agreements negates the possibility that a child would be placed with the parents which are most capable of fulfilling their needs, severely limiting the best-interest approach. A reform of the legislation to enshrine the ‘clear preference towards the legal recognition and regularization of the social reality of the child with their intending parents over endorsing the purported concerns associated with commercial surrogacy’[48] is needed in order to overcome the legal shortcomings in relation to the rights of the child in this area.
- The Rights of the Family
Having discussed the rights of women and children, it is now appropriate to discuss the rights of the family. As set out in the case of Murray in the Irish Supreme Court,[49] the ‘right to procreate children within marriage…is one of the unenumerated rights guaranteed by Article 40 (of the Irish Constitution).’[50] While this right is not absolute, the Irish state is under an obligation under Article 41.2.1 of the Constitution to protect this right as one of the ‘imprescriptible’ rights of the family.[51] Under international law, the rights of the family are grounded in provisions related to family foundation, privacy and family life, as recognized by the ECHR, and the International Covenant on Civil and Political Rights (“ICCPR”).[52] The ability of a couple to conceive a child through ‘medically assisted procreation’ was specifically recognised as falling within the scope of these rights in SH and Others,[53] with the ECtHR declaring the practice to be ‘an expression of private and family life.’[54]
The 2024 Act, in prohibiting payments in excess of reasonable expenses and legal fees in surrogacy, unreasonably limits the ability of couples to engage in any form of surrogacy, be it altruistic or commercial, due to the ‘unworkable’ distinction in the Act between permitted and prohibited payments.[55] In domestic surrogacy, the banning of any receipt of payment to those ‘giving effect to’ or ‘facilitating…the giving effect to’ the surrogacy agreement outside payments permitted in the Act appears to ‘include payments to medical professionals who perform the AHR treatment associated with the surrogacy,’ or third parties ‘only incidentally involved in the matter,’ such as taxi drivers who transport the intending parents to the fertility clinic.[56] Given that there is essentially no public funding for such services in Ireland,[57] intending couples will be stymied from engaging in domestic surrogacy for fear of prosecution due to such payments, inhibiting their realisation of their fundamental familial rights to reproduction.[58]
In the context of international surrogacy arrangements, due to the limited number of jurisdictions open to foreign intending parents that operate on the same ‘reasonable expenses’ basis,[59] such arrangements are increasingly being viewed as ‘invariably commercial.’[60] This was the opinion of Hogan J in the Adoption case,[61] in which he held that ‘it must be recognised that if international surrogacy is to be facilitated or accommodated at all…then some element of commerciality is almost unavoidable, indeed inherent, in such arrangements.’[62] As such, in prohibiting foreign commercial surrogacy arrangements, the 2024 Act almost completely restricts international surrogacy altogether. While, perhaps in contemplation of this difficulty, the 2024 Act does allow for the use of ‘intermediaries’ in international surrogacy cases,[63] this still fails to expand the list of countries available to intending parents due to many countries restricting the operations of profit-making surrogacy intermediaries.[64] Greece and Canada are, in this respect, ‘possibly the only jurisdictions that meet the required criteria.’[65] Intending parents, attempting to engage in surrogacy, both internationally and domestically, thus face increased challenges in their journey to form a family. It is submitted that this is a clear contravention of their constitutional and internationally recognised rights.[66] In light of these issues, an amendment of the provision is needed.
Conclusion
The long-awaited regulation of surrogacy in Ireland is, in essence, a positive step towards recognizing diverse forms of family formation. However, this paper has outlined the damaging effect of the Act’s prohibition of commercial surrogacy, notably on the rights of surrogate women, resulting children, and intending parents. While attempting to mitigate exploitation within surrogacy agreements, the blanket prohibition on commercial surrogacy risks removing the fundamental right to reproductive and bodily autonomy from the hands of women, of contravening the best-interests of the child, and of limiting the ability of couples to engage in family formation. As such, what is proposed here is that future amendments to the Act should focus on regulation, rather than prohibition, a far more reasonable method of ensuring that the Act achieves its goal of avoiding the exploitation of women and children, while upholding the fundamental rights of all those involved in the process. Surrogacy would, as a result, be enabled to serve its purpose as a wholly progressive practice in Ireland.
[1] Rachel O’Keeffe, ‘Womb to Rent: The Ethical and Legal Implications of Surrogacy in Ireland’ (2023) 193 Irish Journal of Medical Science549.
[2] Carlos Sebastian Gracias, ‘Reproductive Surrogacy in Ireland- an Ethical and Legal Context’ (2020) 190 Irish Journal of Medical Science 1063, 1064.
[3] O’Keefe (n 1).
[4] M.R. and D.R. and O.R. and C.R. v An t-Ard Chláraitheoir [2014] IESC 60, [5.1].
[5] Gracias (n 2) 1065.
[6] Connie Healy, ‘Once More with “Sympathy” but No Resolution for Intended Mothers: The EU, Ireland and the Surrogacy Dilemma’ (2017) 39(4) Journal of Social Welfare and Family Law 504.
[7] Health (Assisted Human Reproduction) Act 2024.
[8] ibid s 57 and s 93.
[9] See for example, Dáil Final Stage Debate on the Health (Assisted Human Reproduction) Bill 2022 (Bill 29 of 2022), 29 May 2024.
[10] See for example Report on Pre-Legislative Scrutiny of the Health (Assisted Human Reproduction) (Amendment) Bill, Oireachtas Joint Committee on Health, October 2025.
[11] Select Committee on Health debate, Wednesday, 6 March 2024; Lydia Bracken, ‘Prohibiting Commercial Surrogacy in Ireland’ (2025) 39(1) International Journal of Law, Policy and The Family 1, 15; Health (Assisted Human Reproduction) Act 2024, s 57 and s 93.
[12] Bracken ibid 2.
[13] Bracken ibid 5.
[14] Kathleen Simmons, ‘Reforming the Surrogacy Laws of Considerations and Alternatives’ (2009) 11 FJLR 97; Deborah Satz, Why Some Things Should Not be for Sale: The Moral Limits of Markets (OUP 2010), 128.
[15] O’Keefe (n 1).
[16] Yasmine Ergas, ‘Babies without borders: Human Rights, Human Dignity and the Regulation of International Commercial Surrogacy’ (2013) 27 Emory International Law Review 117.
[17] O’Keefe (n 1).
[18] Report of the Committee of Inquiry into Human Fertilisation and Embryology 1984, 45.
[19] United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, United Nations Treaty Series, vol. 1249 (18 December 1979), Art 12.
[20] European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) [hereinafter ECHR], Arts 7 and 8.
[21] See for example, ‘We need a better way to protect reproductive rights – everywhere’ (Federation of Gynecology and Obstetrics, 7 November 2024) <https://www.figo.org/blog/we-need-better-way-protect-reproductive-rights-everywhere> accessed 15 March 2026.
[22] Gráinne Kinsella, ‘Beyond the Womb: Advocating for Surrogates’ Rights in Assisted Human Reproduction’ (2024) 24 UCDLR 20.
[23] For further discussion see Claire O’Connell, ‘Credulous or the naïve?’ The Irish Department of Health’s response to commercial surrogacy’(2024) 38 International Journal of Law, Policy and the Family 1.
[24] ibid.
[25] ibid.
[26] Bracken (n 11) 4.
[27] V.C v Slovakia App no. 18968/07 (ECHR, 8 November 2011), 96.
[28] Ethics Committee of the American Society for Reproductive Medicine, ‘Consideration of the Gestational Carrier: An Ethics Committee Opinion’ (ASRM, 2023).
[29] Health (Assisted Human Reproduction) Act 2024, s 25 and s 87.
[30] O’Connell (n 23).
[31] John Tobin, ‘To Prohibit or Permit: What is the (Human) Rights Responses to the Practice of International Commercial Surrogacy?’ (2014) 63 ILQ 317, 327.
[32] Whittington Hospital NHS Trust v XX [2020] UKSC 14.
[33] ibid [52].
[34] O’Connell (n 23) 4.
[35] ibid 2.
[36] ECHR, Art 8.
[37] KK v Denmark App no 25212/21 (ECHR, 6 March 2023).
[38] ibid [72].
[39] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) [hereinafter CRC], Arts 7 and 8.
[40] Jaggi v Switzerland App no 58757/00 (ECHR, 13 July 2006), [37].
[41] CRC, Art 2.
[42] Tobin (n 31).
[43] Kinsella (n 22).
[44] Principles for the Protection of the Rights of the Child Born Through Surrogacy (Verona Principles) 2023, [6.1].
[45] KK v Denmark App no. 25212/21 (ECHR, 6 March 2023).
[46] Adoption Authority of Ireland v C and D [2023] IESC 6, [59].
[47] ibid O’Donnell CJ at [59].
[48] O’Connell (n 23) 10.
[49] People v Murray [1977] IR 360.
[50] ibid [61].
[51] Bunreacht na hÉireann 1937, Art 41.2.1.
[52] ECHR, Art 8; CRC Art 16.
[53] SH and Others v Austria App no 57813/00 (ECHR, 3 November 2011).
[54] ibid [60].
[55] Bracken (n 11) 2.
[56] ibid 7.
[57] Lydia Bracken, ‘Restrictions on Publicly Funded Fertility Treatment in Ireland’ (Progress Educational Trust, 2023) <https://www.progress.org.uk/restrictions-on-publicly-funded-fertility-treatment-in-ireland/> accessed 25 February 2025.
[58] Bracken (n 11) 7.
[59] ibid.
[60] Law Commission and Scottish Law Commission, Building Families Through Surrogacy: A New Law Volume II (Law Com No 411; Scot Law Com No 262), 493.
[61] Adoption Authority of Ireland v C & D [2023] IESC 6.
[62] ibid [93].
[63] Health (Assisted Human Reproduction) Act 2024, s 97.
[64] Bracken (n 11) 7.
[65] ibid.
[66] ibid.
