Prohibiting commercial surrogacy in Ireland

The Health (Assisted Human Reproduction) Act 2024 regulates surrogacy for the first time in Ireland. The Act is based on a model of altruistic surrogacy, which applies to both domestic and international arrangements undertaken by Irish intending parents. The definition and prohibition on ‘commercial’ surrogacy in the legislation are broad, covering virtually all payments connected with surrogacy. Certain exceptions to the prohibition on commercial surrogacy apply in respect of international surrogacy, but not domestic surrogacy. Most notably, intending parents are permitted to make payments to surrogacy intermediaries in international surrogacy, but no such payments can be made domestically. In fact, the prohibition on commercial surrogacy appears to prohibit all payments other than the payment of legal fees and the surrogate’s reasonable expenses in the domestic context. As a result, this article argues that the definition and prohibition on commercial surrogacy under the 2024 Act will stymie domestic surrogacy in practice and create a two-tier approach to the prohibition on commercial surrogacy. At the same time, notwithstanding the exceptions that apply in respect of payments in international surrogacy, it is suggested that the 2024 Act will also restrict attempts by Irish intending parents to engage in surrogacy outside of the State due to the unworkable nature of the relevant provisions.