‘Credulous or the naïve?’ The Irish Department of Health’s response to commercial surrogacy

Abstract

Abstract This article explores the prohibition of commercial surrogacy as currently contained within the Health (Assisted Human Reproduction) Act 2024. The 2024 Act regulates surrogacy for the first time in Irish law and creates a framework for the recognition of intending parentage arising from surrogacy agreements. This article explores the safeguards for surrogates contained within the 2024 Act against the arguments generally cited by the Department of Health against commercial surrogacy—that of commodifying children and exploitation of women. It considers Irish case law on commercial surrogacy and that of the European Court of Human Rights. It also includes passages from the O’Connell Study which was conducted within the author’s PhD thesis. The article concludes that the refusal to recognize the legal parent–child relationship based on the commercial nature of the surrogacy agreement is a violation of the child’s right to respect for private life under Article 8 of the European Convention on Human Rights (the ECHR). It also finds that the Irish Courts have found no public policy reason strong enough to justify the refusal to recognize a foreign adoption order which followed a commercial surrogacy agreement. Primarily it argues that a commercial surrogacy agreement can be ethical; but requires sufficient safeguards for those parties involved.