Surrogacy and Consent under Irish Law

In July 2024 Ireland enacted detailed legislation regulating both domestic and international surrogacy arrangements, in the form of the Health (Assisted Human Reproduction) Act 2024. This article will discuss the model for regulating domestic surrogacy in Part 7 of the 2024 Act and critique the court’s inability to dispense with the surrogate’s consent to a post-birth parental order except in the most unusual circumstances. The consent provisions in Part 7 of the 2024 Act are very similar to those in the UK’s Human Fertilisation and Embryology Act 2008. The article demonstrates how the 2024 Act accords a gestational surrogate remarkable weight in determining a genetically unrelated child’s legal parentage, and how this may be detrimental to intended parents and their surrogate-born children. Further, the approach in the 2024 Act may conflict with the provisions on children’s rights, and familial rights, and the state’s concomitant obligations in relation to same, in the Constitution of Ireland, and international surrogacy-related best practice in the Verona Principles. The article concludes by suggesting amendments to the 2024 Act to better balance the rights of all parties to a domestic surrogacy. Keywords: surrogacy; consent; parentage; parental order; best practice; Verona Principles; Constitution of Ireland; law reform.