Advertisement of Surrogacy vs Advertisement of Donor Material

hochspitch

I've been researching surrogacy laws, particularly under the upcoming Children and Family Relationships Bill, and one thing I can't wrap my head around is why it is illegal to advertise an intention to enter into a surrogacy arrangement. While surrogacy and sperm/egg donation are different processes, surely the intention behind both is the same - to assist persons to reproduce who cannot do so naturally - yet there is nothing which prevents people from going online and expressing an interest in providing, or seeking donor material.

The UK's Human Fertilisation and Embryology Act 2008 prohibits surrogacy advertisement too (which obviously explains why the Irish legislation will too) but it doesn't prohibit advertisement of donor material. This is the same in parts of Australia (and probably other areas of the world as well).

So basically, what is the policy intention behind prohibiting the advertisement of a mere intention to enter into a surrogacy arrangement, whether as a surrogate or the intending parents, when no such prohibition exists for the advertisement of donor material to be used for AHR purposes?

234

Because the the context is very different in each case.

Setting aside the moral qualitative differences, there are strong legal differences between egg/sperm donation and surrogacy. In the UK at least (not sure about Ireland), the mother is by default the person who gives birth to the child, irrespective of who provides the genetic material. So the legal outcome of both arrangements is very different.

hullaballoo

It's a very bloody good question, I'll give you that. I can't think of any reason to allow one and not the other.

It may be down to a fear that surrogacy will be outsourced to countries where labour (excuse me) is cheaper, such as India. I have seen a few documentaries on couples travelling to India and other places where "clinics" operate that take in surrogates for the duration of the pregnancy and pay them. I think the undertone of those documentaries was that it is distasteful at best and exploitative at worst.

</wild stab in the dark>

hochspitch

Sure the processes are different, but I still don't see the justification of prohibiting advertisements relating to surrogacy. In fact that may not even be the rationale behind it because there is no accompanying guidelines or commentary as to why the legislature is choosing to insert this prohibition into the proposed laws. Under the proposed laws the surrogate mother, as the birth mother, will be the legal mother too, but the intending parents can then apply to the court to get a parenting order which disproves the surrogate as the child's legal mother and registers the intending parents as the child's parents. If surrogacy was so controversial and exploitative, would they not just outright prohibit it? Instead, the new laws will effectively facilitate surrogacy in Ireland, but there's pretty much no way to actually find a surrogate unless its someone you know. This seems to go against the idea of regulating for surrogacy in the first place, hence why I'm wondering what the rationale for it is.

As for the fear of foreign surrogacy arrangements, surely a prohibition on advertising surrogacy in Ireland would push people out of the country to avail of surrogacy services? The law only applies to Ireland, therefore there's no prohibition on advertising an intention to enter into a surrogacy arrangement abroad (in countries which permit it obviously). As for the exploitative nature of surrogacy, stopping people fro advertising an intention to enter into a surrogacy agreement would do little. Effectively, by advertising either an intention to seek a willing surrogate, or an intention to act as a surrogate, this is essentially an offer, to which the other party(/ies) can accept, thus making it a contract (although potentially an unenforceable one), just like the request for sperm donations and any subsequent offerings of sperm donations.

Carawaystick

I suppose it will take a brave soul to litigate to force the state to show why this restriction on free speech is immoral or bad for public order...
And we'll have a few lost decades where the children get stigmatized by the state before eventually here's a bit of cop on...