Posted: September 1st, 2023

Sample Question on Surrogacy

SAMPLE ASSIGNMENT

I will put notes on bold and caps through the sample so I can highlight points to you.
Please do not think that you have to mirror exactly what is done here, or the language used. These assignments are not mathematical equations, there is no exact right answer and students may have a different style. I am just providing this sample so you can see what the correct format should be and what I mean by points like linking your answer back to the question.

There are aspects of the answer that could be developed more but I was conscious of the word count and the need to cover all of the points rather than labouring on one particular point, to the expense of failing to address another point at all. It is not easy to balance this, you have to think about the overall points you should make and make sure that each of them are covered to show you know they are relevant points.

I tried to discuss case law from Ireland and the European Court of Human Rights, legislation, commentary in text books and articles and reports so you can see same and the approach might be helpful as a guide for your own assignment.

Sample Question on Surrogacy:

Question 2
“From a human point of view it is completely wrong that a system, having failed to regulate in any way the process of assisted reproduction, and which accordingly permits children to be born, nevertheless fails to provide any system which acknowledges the existence of a genetic mother not merely for the purpose of registration, but also in the realities of life including not just important financial issues such as inheritance and taxation, but also the many important details of family and personal life which the Constitution recognises as vital to the human person”. (MR v An tÁrd Chláraitheoir [2014] 3 IR 533, p.612)

Discuss the current regulation of surrogacy in Irish law and the proposed reforms in this area, with reference to case law, legislation and relevant reports.

Student Number ———–

Question 2

Word Count: 1942 [Word Count does not include Reference List Student Number or Word Count description, just the Assignment itself]

Introduction
The quotation from the judgment of O’Donnell J in MR v An tÁrd Chláraitheoir [case always described in italics] in the question highlights the profound implications of the failure of the Oireachtas to regulate the new biological reality of surrogacy. This paper examines the legal regulation and recognition of parenthood of children born out of surrogacy agreements. Part I explains that Irish law does not regulate surrogacy at all at the moment. It examines the decisions of the High Court and Supreme Court in the MR case, and the implications of the absence of any regulation of surrogacy in Ireland. Part II considers the proposed legal reforms of surrogacy. The provisions of the General Scheme of Assisted Human Reproduction Bill 2017, if enacted in their current form, will only regulate surrogacy to a certain extent in Ireland. However, some aspects of surrogacy, and in particular potential disputes over parenthood arising from surrogacy arrangements, and international surrogacy agreements are not addressed in the proposed legislation. This failure leaves gaps in the law to the extent that the concerns expressed by O’Donnell J in MR will continue to apply to Irish law. [NOTE how I am referring to the question, you don’t need to do it as much, but I am doing it to show you how you can stay focused on the answer. the introduction should not be much longer than this and could be shorter- the point is to have structure and focus. ALSO note that I am getting straight to the point with my positions or assessment of the law. There is no science or rule as to the number of sections you should have, as long as each section/part has a logical theme]

I. The Current Regulation of Surrogacy under Irish Law

The Supreme Court in MR v An tÁrd Chlaraitheoir considered the registration of motherhood arising from the birth of a twins by virtue of a domestic surrogacy agreement ([2014] 3 I.R. 533). In this case, the birth mother consented to the registration of the genetic mother as the legal mother of the twins. The Supreme Court overturned the decision of Abbott J in the High Court. Abbott J in the High Court held that “mother” for the purposes of the Civil Registration Act 2004 referred to the genetic mother. Abbott J concluded that the gestational mother should be respected and treated with care. However, in light of the importance and indeed paramountcy of the blood relationship between a parent and child, Abbott J granted a declaration that the genetic mother of twins was the legal mother of the children, pursuant to section 35(8)(b) of the Status of Children Act 1987, and should be registered as the mother on the twins’ birth certificates ([2013] 1 I.L.R.M. 449, p.486). Abbott J recognised that the preference for genetic as opposed to gestational motherhood was a departure from the standard position that legal motherhood was based on the incontrovertible fact that the woman who gave birth to a child was the legal mother of the said child (ibid, p.483). [ibid is a Latin adverb used to indicate you are quoting from the same source as the previous quotation and is useful in keeping the word count down!]

The Supreme Court, on appeal, overturned the High Court decision. Denham CJ found that the existing legislation on registration of births only permitted the registration of the birth mother on the twins’ birth certificate. Denham CJ held that the lacuna in the law on this point should be addressed in legislation and not by the Supreme Court. Denham CJ recognised that ‘the issues raised in this case [were] important, complex and social, [and were] matters of public policy for the Oireachtas’([2014] 3 I.R. 533, p.568).

Parts 2 and 3 of the Child and Family Relationships Act 2015 address a number of issues concerning donor assisted human reproduction and provides for parentage orders in relation to children born as a result of donor assisted human reproduction procedures. These provisions do not address surrogacy. For example, section 20 of the 2015 Act provides for the retrospective recognition of parentage of children born both in Ireland and outside of Ireland through donor assisted human reproduction procedures. Section 20 clearly states that the mother of the child is recorded as the mother.

O’Donnell J’s observations in MR contained in the question recognise that the status quo, the automatic recognition of the birth mother as the legal mother of a child, was problematic from a general constitutional perspective (Mills & Mulligan (2017), p.447). [if you read something in a text or a journal article that you like and want to use it them please acknowledge same and cite the source- please try to put your own stamp on it- why do you agree?] The failure to accommodate intending and genetic registration of a person as the legal mother of a child has wide ranging administrative and legal implications. The Irish courts have recognised and protected the natural and unenumerated rights of the mother under Article 40.3.2 of the Irish Constitution. [The presentation on the assignment did not address references to provisions of the Constitution- each provision is called an Article and is described with a capital A] O’Higgins C.J. in G. v An Bord Uchtála held that a mother’s constitutional rights ‘arises from the infant’s total dependency and helplessness and from the mother’s natural determination to protect and sustain her child’ ([1980] I.R. 32, p.55).

It is not clear whether future protection of these rights would be enjoyed by a gestational mother or a genetic mother, or indeed both. The uncertainty about the scope of the rights of the “natural mother” will be relevant in any future dispute between parties to a surrogacy arrangement, especially in circumstances where the gestational surrogate changes her mind and wants to be recognised as the legal mother of the resulting child. The recognition and protection of such rights will have implications for the legal recognition of parenthood and standing to apply for guardianship of and access to such future children born through these agreements. Part II will consider the proposed future legal regulation of surrogacy in Ireland, and the limitations of same. [linking sections is a good idea- it shows there is one idea flowing throughout rather than a number of different bits put together without an overall aim/purpose]

II. The Future Regulation of Surrogacy in Ireland

The Commission on Assisted Reproduction (2005) considered legal parentage and noted that both genetics and gestation played equally important roles in bringing a child into existence (p.51). The Commission was of the opinion that rights based on the ‘intent of reproduction’, namely what all parties intended from the outset of the arrangement, should form the basis of recommendations on legal parentage in cases of surrogacy (ibid). The majority of the Commission recommended that the child born through surrogacy should be presumed to be that of the commissioning couple (ibid). The majority argued that the word ‘presumed’ allowed enough flexibility in relation to the legal parentage of the child to consider cases where some fundamental change in the circumstances under which the surrogate mother consented to the arrangement could be established (ibid).

The General Scheme of the Assisted Human Reproduction Bill 2017 was published by the Department of Health in October 2017 (Tobin (2017), p.83). Part 6 of the General Scheme contains proposals for the regulation of altruistic, gestational surrogacy in Ireland (Head 36 of the Bill). Part 8 of the General Scheme provides for the creation of an Assisted Human Reproduction Regulatory Authority. One of the many functions of the proposed Authority would be to approve a surrogacy agreement before any treatment was provided. Head 38 of the Bill provides that the proposed surrogate must be medically and psychologically assessed and approved as suitable to act as a surrogate by a registered medical practitioner and a counsellor. Head 43 of the Bill mandates that the proposed surrogate received independent legal advice on the implications of the agreement. The approval of the Authority will be limited to the approval of the treatment, not the legal parentage to be recognised on foot of the treatment (ibid, p.85). [ Brian Tobin’s article on this was very good, I have acknowledged his assessments on a few occasions. Again, if you are using a source give it credit but use the source to make your own argument or assessment. I see you quote 10 sources but cannot see an actual argument or position coming from the use of the quotes then you won’t receive your full potential marks- you have to demonstrate your understanding].

Head 47 of the General Scheme provides for applications for a parental order on foot of an approved surrogacy agreement, namely an agreement permitted under Head 36. Head 47(6) sets out that the application can only be made between 6 weeks and 6 months after the birth of the child in question. Head 48(1) provides that the court may grant the parental order if it is satisfied that the surrogate, and indeed her husband if she is married, consents to the granting of the parental order. Brian Tobin criticises the disjointed approach of the General Scheme and the distinction drawn between preliminary approval of the agreement and the necessary subsequent consent of the surrogate to the parental order (ibid, p.84). This criticism is well founded. The General Scheme provides for stringent measures for approval of surrogates before treatment. However, it fails to recognise that such approval should be relevant, or indeed, determinative of parenthood in advance of the birth of the child. It is respectfully submitted that this two-tiered approach to surrogacy illustrates a discomfort and suspicion of the process, to the detriment of the intending parents. Head 48(2) lists a number of circumstances in which the court may waive the requirement under subhead (1) for consent of the surrogate, or her husband, namely if he or she:
‘(a) is deceased;
(b) lacks the capacity to provide consent;
(c) cannot be located after reasonable efforts have made to find him or her, or
(d) for any other reason the court considers to be relevant’.
[I could have gone into the provisions of the Bill in more detail. This point should be linked with the PowerPoint presentation and the point that the sections of an Act should not be copied and pasted, you can paraphrase and demonstrate you know what the sections provide for]

Head 48(2)(d) may provide the court with some discretion to dispense with the consent of the surrogate in circumstances where the surrogate has changed her mind. It must be recognised that Head 48(1)(f) provides that the parental order will only be granted if it is in the best interest of the child involved. The best interests of a child is a subjective notion. The vague nature of the concept means it is open to manipulation by interested parties to further their own individual aims (Charlow (1986), p.267). The welfare and well-being of each child should be, and indeed will be, central to any important decision made by any family court. The courts must be conscious of the malleable nature of the principle and ensure that the child’s well-being rather than the perceptions and desires of the potential legal parents should be considered.

The European Court of Human Rights, in cases like Evans v United Kingdom ((2008) 46 E.H.R.R. 34) and SH v Austria (Application No 57813/00), has recognised that the right to become a parent is protected by Article 8’s guarantee to protect private and family life. However, the Court has continuously recognised the wide margin of appreciation afforded to Member States in regulating assisted reproductive technologies in light of the sensitivity of moral and ethical issues at stake and the absence of consensus between the Member States in regulating these issues (Evans, para.[68]). [In my legal writing I would often cite paragraphs of cases rather than pages, the Harvard method focuses on pages. There are some cases where because of where it is reported the paragraph number is a more accurate source. I am fine with either. In this case the paragraph number was technically more accurate, don’t worry too much just indicate if it is page (p.) or paragraph (para.), these are little things but want to highlight it] The case law of the European Court will inform future cases and commentary in Irish law but will have a limited role in the promotion of particular rights in light of the sensitive nature of the subject matter.

The Oireachtas Joint Committee on Health published a Report on Pre-Legislative Scrutiny of the General Scheme of the Assisted Human Reproduction Bill in July 2019. It noted that Head 36 only permits a domestic surrogacy, and speculated that international surrogacy agreements will not be recognised as legitimate arrangements and constitute a criminal offence (p.19). The Joint Committee argued that the main reason for not legislating for international surrogacy was to avoid supporting potentially exploitative practices that would not be permitted in Ireland. The Joint Committee equally recognised the submissions of experts, including Dr. Deirdre Madden, that domestic surrogacy under the parameters of the General Scheme will not satisfy demand and people will continue to travel abroad to seek out international surrogacy agreements (ibid). International surrogacy agreements will continue to be subject to the Guidelines on travel documents issued by the Department of Foreign Affairs (Department of Foreign Affairs, 2012). The different treatment of parents and children born through international surrogacy agreements and the refusal of Irish law to provide a clear path to registration of the child and recognition of legal parenthood of the intending parents may deter international surrogacy. [If I had more space I would develop this point in more detail but it is acknowledged and the problems with the topic are discussed]

Conclusion
The status quo cannot continue and Irish law must regulate surrogacy. The provisions in the 2017 Bill will create some mechanisms for the regulation of surrogacy in Ireland. The failure to regulate international agreements and disputes between the parties to surrogacy agreements in the current proposal for reform reinforce the assessment made by O’Donnell J in MR in the quote in the question, that the failure to regulate the reality of children’s and parents’ lives is completely wrong, and impacts on many areas of life. [Again, like the introduction, the conclusion should not be long (the marks available are for structure and coherence of argument but more importantly having an introduction and a conclusion should focus your main content- they should be the bookends to the main content. It should tie in the points made and should tie back to the question because the answer should be the answer to the specific question!]

REFERENCE LIST
Case Law
Evans v United Kingdom (2008) 46 E.H.R.R. 34
G. v An Bord Uchtála [1980] I.R. 32
MR v An tÁrd Chláraitheoir [2013] 1 I.L.R.M. 449; [2014] 3 IR 533
SH v Austria Application No 57813/00

Legislation
Child and Family Relationships Act 2015. (No. 9).
Civil Registration Act 2004. (No. 3).
Status of Children Act 1987. (No. 26)

Books
Mills, S. & Mulligan, A. (2017) Medical Law in Ireland. 3rd edn. Dublin: Bloomsbury Professional

Articles
Charlow, A. (1986) ‘Awarding Custody: The Best Interests of the Child and Other Fictions’, Yale Law & Policy Review, 5(2), pp. 267-290
Tobin, B. (2017) ‘The General Scheme of the Assisted Human Reproduction Bill 2017: A Hybrid Model for the Regulation of Surrogacy in Ireland’ Irish Journal of Family Law, 4, pp. 83-87

Reports

Commission on Assisted Human Reproduction (Ireland) (2005) Report of the Commission on Assisted Human Reproduction. Available at: http://hdl.handle.net/10147/46684 (Accessed: 26 March 2020)

Department of Foreign Affairs (Ireland) (2012) Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children born as a result of Surrogacy Arrangements Entered into Outside the State. Available at: https://www.dfa.ie/media/dfa/alldfawebsitemedia/passportcitizenship/Surrogacy-Guidelines.pdf (Access on: 26 March 2020)

Joint Committee on Health (Ireland) (2019) Report on Pre-Legislative Scrutiny of the General Scheme of the Assisted Human Reproduction Bill (Dublin). Available at: https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_health/reports/2019/2019-07-10_report-on-pre-legislative-scrutiny-of-the-general-scheme-of-the-assisted-human-reproduction-bill_en.pdf (Accessed: 26 March 2020)

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