The Irish government claims its new surrogacy bill is ethical and entirely altruistic in nature. But recent comments from lobbyists, vagueness in legislative wording and precedent from other jurisdictions show that ‘altruism’ is a falsehood, and the exploitation of women and children remains rife.
The Health (Assisted Human Reproduction) Bill 2022 is quickly passing through the lower house, with committee stage now complete. This bill, which covers both domestic and international surrogacy, is a global first.
Until now, no other country has attempted to regulate the use of surrogacy in foreign jurisdictions over which it has no authority.
It is widely known that overseas surrogacy is overwhelmingly commercial in nature. However, the government and Minister for Health have insisted that commercial surrogacy will not be allowed under the new law, with the Irish Independent reporting earlier this month that if a couple go to a country such as the US where commercial surrogacy is allowed, it will not be compliant with the legislation and parental rights will not be granted by the court.
This announcement sparked outrage from pro-surrogacy activists, who claim that the prohibition of commercial surrogacy closes off ‘a crucial path to parenthood for many’. Speaking at a webinar organised by Irish Families Through Surrogacy (IFTS) and attended by a member of Radicailín last Wednesday, Fine Gael Senator Mary Seery Kearney assuaged the concerns of attendees hoping to undertake surrogacy in countries where commercial surrogacy is legal, such as the USA, Georgia and Mexico. She stated that she has recently received confirmation from the Department of Health that entire countries or states will not be ‘written off’, even if commercial surrogacy is legal in the country.
The senator explained that after the establishment of a new Assisted Reproduction Regulatory Authority (AHRRA), commissioning parents will be able to make a proposal to undertake surrogacy in any country at pre-conception stage. The applicants will have to provide evidence that there is ‘no commercial element’ to the proposed arrangement. If commercial surrogacy is legal in the chosen jurisdiction, but the particular clinic or particular arrangement within a clinic doesn’t provide for commercial surrogacy – the arrangement may still be approved by the AHRRA. There will be no ban on any particular country. This information is contrary to the widely-reported plan to establish a limited ‘Green List’ of state-recognised countries where Irish commissioning parents can undertake surrogacy arrangements. This means that Irish people will continue to travel to countries where commercial surrogacy is legal. Women are currently being exploited through surrogacy by Irish residents in the US, Canada, Armenia, Nigeria, Colombia, Mexico, Argentina, Ukraine and Greece, to name just a few countries.
But if ‘no commercial element’ is allowed, how do they expect Irish surrogacy arrangements to compete in countries where commercial surrogacy is legal? Altruistic surrogacy is rare in Ireland, with the vast majority of commissioning parents choosing to go abroad instead. Is there a market for uncompensated overseas surrogacy? Senator Seery Kearney says that she expects ‘new models of surrogacy will emerge’ in such countries in response to the Irish legislation.
In reality, these new models will not diverge significantly from existing commercial models. This is because despite claims that both domestic and overseas surrogacy arrangements must be altruistic in nature, the bill provides that ‘reasonable expenses’ may be paid to the surrogate. During the IFTS webinar, Mary Seery Kearney outlined what these ‘reasonable expenses’ will entail. The government has already agreed that expenses may include: all medical costs, legal expenses, travel, loss of income, and ‘any other pregnancy expenses incurred’, including maternity clothing, childcare and housework.
In the UK, a similar framework of ‘reasonable expenses’ is already in place. Although legally only altruistic surrogacy is permitted in the UK, research suggests that surrogacy arrangements often operate under a more commercial model. A Law Commission review of family court files in 2019 found that the median payment to UK surrogates was £14,795, with 10% of surrogates receiving over £20,000. The Law Commission research also highlighted that very few cases included an itemised breakdown of expenses incurred. Instead, it was common for a flat-rate to be agreed pre-conception and paid to the surrogate in monthly instalments, rather than the commissioning parents reimbursing the exact expenses as they arise.
This method of reimbursement has been previously flagged by the UN Rapporteur on the sale and sexual exploitation of children as an indicator of commercial surrogacy:
“Courts or other competent authorities must require all ‘reimbursements’ to surrogate mothers to be reasonable and itemized, as otherwise ‘reimbursements’ may be disguised payments for transfer of the child. Payments to intermediaries, whether for-profit or not-for profit, may be considered an indication of commercial surrogacy, and should be reasonable and itemized. There is particular risk when significant reimbursements or payments are made using open-ended categories such as ‘pain and suffering’ or ‘professional services’.” – Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material (2018, pp. 16)
It’s already clear to see how these ‘reasonable expenses’ are technically limitless and can easily cross into commercial territory. Such arrangements are altruistic in name only, but it gets worse.
Seery Kearney also revealed that they are currently lobbying for compensation to extend even further – By topping up the surrogate’s income to be in line with the ‘average wage’ of the country in which she lives. The ‘average wage’ varies widely across the world and is usually much higher than what women who are prime candidates for surrogacy could ever hope to make. For example, California, one of the most popular destinations for surrogacy in the United States, boasts an annual average wage of $73,000. Here in Ireland, it is €45,000. Considering payments in line with full-time wages as merely ‘expenses’ is ridiculous.
Surrogates are overwhelmingly younger, lower-income, and often mothers of young children. As a demographic, surrogate mothers usually lack access to affordable childcare, full-time employment and high salaries in line with the national average. All women want to escape poverty, enjoy a good quality of life and provide for their families. Hannah, a British surrogate mother told Julie Bindel in 2023:
“I know as a single mum, that having that additional income, having those expenses – that are not really pregnancy related expenses, but never actually got checked by the court either – that was a really lovely thing for me to able to have each month; I was able to fix my car, I was able to buy nice takeaways, things that I would normally not have done, had I not been in surrogacy, so I can see why it would be extremely attractive for lots of families, especially for single mothers, having that additional £1100, £1500 a month… you can see why lots of women would do it.”
These women are not choosing to be surrogates out of altruism, and to consider offering payment this high in exchange for surrogacy extends far past the limit of ‘reasonable expenses’. The only reason commissioning parents are advocating for this payment is because they know it will lure even more vulnerable women into surrogacy contracts. It is coercion, and consent cannot be bought. To claim this plan is anything but a ploy to bring in commercial surrogacy through the back door would be completely disingenuous.
From the shocking statements made at the IFTS webinar (including a government politician saying they ‘understand’ why Irish people continue to travel to Ukraine for surrogacy despite war) it is clear that surrogacy advocates see few ethical issues with surrogacy of any kind, and would like nothing more than for surrogacy to be totally legalised globally. This comes as no surprise, since members of lobby groups and the senator have exploited women through overseas commercial surrogacy, whilst lawyers profit from handling their legal issues. These are not people who have the wellbeing of mothers and infants at heart.
To protect women and children from exploitation both here in Ireland and abroad, we have to act now.
The next stage of the Health (Assisted Human Reproduction) Bill is expected to be complete by the end of April. We urge you to read our campaign page, speak to your TDs and Senators and contact us if you have any questions or concerns.
Gabi is a radical feminist from Ireland.