‘Cé leis í?’ Determining the legal position of the ‘Surrogate’ in a surrogacy relationship through the Reproductive Justice Framework: A proposed model for Ireland.
Mulligan, Hayley Elizabeth
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This thesis asks the question: Cé leis í? (Who is she?) This question refers to the uniquely Irish kinship structure which recognises complex filiation structures. Similarly, advances in assisted human reproduction which allow for surrogacy have raised increasingly complex kinship filiation questions of law and social policy. In the absence of specific law governing surrogacy arrangements in Ireland this thesis proposes a regulatory model to govern Irish domestic surrogacy relationships. The methodology adopted was interdisciplinary consisting of comparative doctrinal legal analysis of Ireland, South Africa and the UK viewed through the lens of the reproductive justice framework. What emerged from this analysis is a surrogacy law model that aligns more closely with the reproductive justice framework. In guarding against stratified reproduction, embodiment theory, single axis analysis, non-discrimination law and stereotyped ideas of motherhood, the reproductive justice framework goes beyond the privacy, choice and free-market paradigms to encompass an examination of the impact (intended or otherwise) that race, gender, and class have on such arrangements. Ireland’s surrogacy law will not operate in a vacuum but will instead be bound by international and EU law. Therefore, this thesis considers the domestic, regional, and to a somewhat lesser extend the public international law and private international law elements of surrogacy arrangements and proposed a national legislative solution to domestic surrogacy arrangements. The domestic model proposed in this thesis recognises, inter alia, that surrogacy relationships should be regulated through a two-step confirmation process which encompasses an ex ante administrative and a judicial oversight mechanism of determining parentage of the intended parents of a surrogate-born child. Beyond recognition of the intended parent’s parental filiation the model robustly asserts that residual association or care rights endure in the surrogate ex post facto the birth of the child. Additionally, it is submitted that traditional, gestational and double-donor surrogacy should all be regulated under the proposed model for Ireland. This approach differs from a multi-parent approach in that the intended parent or parents are the sole legal parents of a surrogate-born child. The proposed model in some respects ‘flattens’ the genetic, intentional and gestational elements of parentage and recommends a comprehensive surrogacy law model that recognises, respects and protects the diverse familial and kinship relationships arising from surrogacy relationships.