Shatter welcomes Dail Debate on Children and Family Relationships Bill but says Surrogacy provisions should be reinstated

25 Feb 2015

Shatter welcomes Dail Debate on Children and Family Relationships Bill but says Surrogacy provisions should be reinstated

I am delighted that the Dail debate on the Children and Family Relationships Bill is now underway.  This is a Bill of enormous importance in modernising our laws relating to legal parentage, guardianship, custody and ensuring that the best interests of children are protected. 

Detailed provisions on assisted reproduction contained in Parts 2 and 3 of Bill (36 sections) are an important step forward.  When the Bill is enacted there will be, for the first time, clarity as to the identity under Irish law of parents of children born as a result of Donor Assisted Human Reproduction.  

However, it is very disappointing that provisions relating to children born through surrogacy, that were contained in the draft Bill I published in January 2014, have been removed from the Bill currently before the Dail.  It makes no sense to exclude these children when addressing other parentage, guardianship, and custody issues relating to other children born by assisted human reproduction.  Issues relating to the best interests and welfare of all children are relevant to this Bill and there is no valid reason to exclude the small number in this State already born through surrogacy or who will be born in the coming months.  The legal architecture necessary is substantially contained in January 2014 draft Bill and could, without difficulty, be incorporated into Bill now before the Dail.  I am also surprised that the Minister for Health intends to initiate a consultative process on provisions that were already subject to a consultation and Oireachtas Justice Committee hearing held during first half of 2014 for which there was substantial support.

It is perfectly reasonable that other issues on which it was always envisaged the Department of Health would publish its own legislation be published for consultation as no public consultative process has yet been undertaken on those.  The Minister for Health has stated that he does not expect to publish his draft legislation until sometime in the Autumn of 2015 and he does not expect a Bill will be enacted before the General Election. In the circumstances, it makes absolute sense that the provisions below together with appropriate amendments resulting from the completed consultation process be incorporated into the Bill currently being debated.  To do so is in the best interests of children.

See below extracts relating to surrogacy contained in  Draft Bill published in 2014.  

Extract from:

 

 

GENERAL SCHEME OF A CHILDREN AND FAMILY RELATIONSHIPS

BILL 2014

 

ARRANGEMENT OF HEADS

 

Head 12: Parentage in cases of surrogacy.

 

Provide along the following lines:

 

(1)     If a child is born as a result of a surrogacy arrangement with the use of

human reproductive material provided by a man only, and the birth

mother is declared under Head 13(9) not to be a parent, the parents of the

child are the man and a person who:

 

(a) was married to or in a civil partnership with or cohabiting in an

intimate and committed relationship with that man at the time of

the child’s conception, and

 

(b) consented to be a parent of a child born as a result of a surrogacy

arrangement and did not withdraw that consent before the child’s

conception.

 

(2)     If a child is born as a result of a surrogacy arrangement with the use of

human reproductive material provided by a woman only, and the birth

mother is declared under Head 13(9) not to be a parent, the parents of the

child are the woman and a person who:

 

(a) was married to or in a civil partnership with or cohabiting in an

intimate and committed relationship with that woman at the time of

the child’s conception, and

 

(b) consented to be a parent of a child born as a result of a surrogacy

arrangement and did not withdraw that consent before the child’s

conception.

 

(3)     If a child is born as a result of a surrogacy arrangement with the use of

human reproductive material provided by a man and a woman, and the

birth mother is declared under Head 13(9) not to be a parent, the parents

of the child are the man and the woman.

 

Notes

This Head sets out how parentage may be assigned by the court in cases of surrogacy.

It sets out the presumptions where the surrogate consents to an order declaring her not

to be a parent. The rule is that the parents of the child are a man who provides human

reproductive material, and his spouse, civil partner or cohabitant if that person has

consented to be a parent of the child (subhead (1)), or a woman who provides human

reproductive material and her spouse, civil partner or cohabitant if that person has

consented to be a parent of the child (subhead (2)), or a man and woman who have

each provided human reproductive material (subhead (3)). If the surrogate does not

consent, she will be the child’s mother.

 

 

Head 13: Applications to court relating to surrogacy

 

Provide along the following lines:

(1)   An application may be made to the court for a declaration that –

 

(a)   a surrogate is not a parent of a child born to the surrogate as a

       result of assisted reproduction,

 

(b)   a person or two persons whose human reproductive material or

embryo was provided for use in the assisted reproduction is a

parent or are the parents of that child, and

 

(c)   in a case where there is only one person referred to in paragraph

       (b), a person who was, at the time of the child’s conception,

married to or in a civil partnership with or cohabiting in an intimate

and committed relationship with that person is a parent of the child.

 

(2) Subject to subhead (4) the following persons may make an application

      under subhead (1) –

 

(a)   the surrogate,

(b)   a person referred to in subhead (1)(b), or

(c)   a person who was, at the time of the child’s conception, married to

or in a civil partnership with or cohabiting in an intimate and

committed relationship with a person referred to in subhead (1)(b).

 

(3)   An application may be made under subhead (1) of this Head

notwithstanding the fact that any person named in the application as the

father or the mother or a parent or, in the case of a surrogate, as not being

a parent, is not or may not be alive.

 

(4) If a child is born as a result of assisted reproduction with the use of

human reproductive material or an embryo provided by both a man and a

woman, only the surrogate, the man or the woman or the man and the

woman jointly may make an application under subhead (1).

 

(5) Subject to subhead (6), an application under subhead (1) may not be made

less than 30 days after and not more than 6 months after the child’s birth.

 

(6) An application under subhead (1) in relation to a child born through a precommencement surrogacy arrangement may be made not more than 2

years after the commencement of this Head unless the court is satisfied

that there are special circumstances and it is in the best interests of the

child or children concerned, in which case the court may extend the time

for the making of an application.

 

(7) Unless the court directs otherwise, the following persons, must in

accordance with any regulations made pursuant to this Act, be served

with notice of the application:

 

(a)    if a surrogate brings an application under subhead (1):

 

(i) the person or both persons referred to in subhead (1)(b),

(ii) in a case where there is only one person referred to in

                  subhead (1)(b), the person, if any, referred to in subhead

                                          (2)(c), and

 

                                    (iii) any other person the court considers appropriate.

 

(b) if a person referred to in subhead (1)(b) brings an application under

                              subhead (1):

 

(i)      the surrogate,

 

(ii)    the other person, if any, referred to in subhead (1)(b),

(iii) in a case where there is only one person referred to in

       subhead (1)(b), the person, if any, referred to in subhead

       (2)(c), and

(iv) any other person the court considers appropriate.

 

(c) if a person referred to in subhead (2)(c) brings an application:

(i) the person referred to in subhead (1)(b),

(ii) the surrogate, and

(iii)  any other person the court considers appropriate.

 

 

(8)  An application under this Head shall be accompanied by evidence of the

       genetic relationship of the person or persons specified in subhead (1)(b) to

the child and evidence that the surrogate is not the genetic mother of the

child.

 

 

(9) The court shall make the declaration applied for if the court is satisfied

      that:

 

(a) the child was born as a result of assisted reproduction with the use

     of human reproductive material or an embryo provided by a person

     referred to in subhead (1)(b),

(b) the surrogate consents, in the form prescribed by regulations made

     pursuant to this Act, to the application, and

 

(c) it is in the best interests of the child to do so.

 

(10) A person who is declared to be a parent of the child under subhead (9) is

       deemed to be the parent at and from the time of the birth of the child;

 

(11) Any arrangement under which a surrogate agrees to give birth to a child

        for the purpose of relinquishing that child to a person may not be used as

        evidence of consent of the surrogate under subhead (9)(b), but may be

        used as evidence of consent for the purposes of subhead (1)(b) or (2)(b) of

        Head 12.

 

(12) The court may waive the consent required under subhead (9)(b) if:

 

(a) the surrogate is deceased, or

(b) the surrogate cannot be located after reasonable efforts have been

      made to locate her.

(13) If the court makes a declaration under subhead (9) the court shall identify

                    in the declaration each person referred to in Head 12 who is parent as a

        result of that declaration.

(14) The court has jurisdiction under this Head if:

(a) the child is born in the State, or

(b) an alleged parent ordinarily resides in the State or is a citizen of the

     State.

(15) An application under this Head shall not be granted if the child has been

       adopted.

(16) The court shall not grant a declaration under this section that would result

        in the child having more than 2 parents.

(17) The court shall not grant a declaration where the surrogate was, at the

        time of entering the surrogacy arrangement, under the minimum age
        prescribed in subhead (1) or subhead (2), as the case may be, of Head 20.

 

(18) The court shall not grant a declaration where any person referred to in

subhead (1)(b), or a person, if any, referred to in subhead (2)(c), was, at

the time of entering the surrogacy arrangement, under the minimum age

prescribed in Head 21.

(19) The court shall not grant a declaration where a payment prohibited under

       Head 18 is made in respect of an arrangement entered into after the

       commencement of this Act.

(20) Rules of court may provide that any application for a declaration under

        this Head shall contain such information as may be prescribed.

 

 

Notes

 

This Head sets out how the orders a court may make determining the parentage of a

child born through surrogacy.

 

The policy intention is that in a surrogacy case, the birth mother will be recorded as

the child’s mother. No surrogacy arrangement will be enforceable against her.

However, on application to the court by the birth mother or the commissioning

parents, or all of them, the court may legally assign parentage to the intending parents.

The court may assign parentage on the basis of genetic connection to one of the

intending parents and to the spouse, civil partner or cohabiting partner of that person.

The consent of any surrogate is essential and she will be the legal mother of the child

if she does not consent.

 

Subhead (1) sets out what the court may order, which is that the surrogate is not

legally a parent of the child, and that each intending parent who has a genetic

connection to the child is a parent, or, if only one intending parent has a genetic

connection, then the consenting spouse, civil partner or cohabitant of that parent (if

any) is also a parent of the child.

 

Subhead (2) sets out that any of the surrogate or any intending parent may make the application – but each other party, and any other person the court considers appropriate, must be served with notice of the application (subhead (7)).  Subhead (3) allows the making of an application even where any of the relevant parties has died.

 

Where a man and a woman both provide the genetic material for their own

reproductive purposes to create an embryo, only they and the surrogate may apply for

a declaration as to parentage of the child (subhead (4)).

 

Subhead (5) limits the timeframe for the making of an application to no earlier than

30 days after the child’s birth and not later than six months after. It is considered that

a birth mother should have sufficient time to recover from the rigours of pregnancy

and childbirth before participating in proceedings.  Subhead (6) modifies this rule in relation to pre-commencement surrogacy arrangements so that an application may be made up to 2 years after commencement of the provision, and allows the court to accept an application even later than this if the court considers there are special circumstances which must be taken into account.

 

An application must be accompanied by evidence of the genetic relationship of one of

the intended parents to the child and evidence that the surrogate is not the genetic

mother of the child (subhead (8)). “Traditional surrogacy”, in which a woman

becomes pregnant using her own eggs with the intention of giving up the child to

commissioning parents, is excluded from the scope of these legislative proposals.

 

Subhead (9) mandates the court to make the order applied for if it is satisfied that the

surrogate consents and that at least one of the intending parents has a genetic link to

the child. Where the court makes a declaration, the parents named in that declaration

are deemed to be the parents of the child from the date of the child’s birth. The

declaration must name each person who is a parent of the child (subhead (13)),

Subheads (11) and (12) make certain provisions as to consent. Subhead (11)

establishes that a surrogacy arrangement – which is entered into before the surrogate

becomes pregnant – cannot be used as evidence of the surrogate’s consent. The

consent of the surrogate is valid only if it is freely given when the application is made.

However, it may be used as evidence of the consent of either of the intending parents.

The court may waive the consent of a surrogate who is deceased or cannot be traced

(subhead (12)).

 

Subhead (14) confers jurisdiction if the child is born in the State or a parent is

ordinarily resident in or a citizen of the State. Subhead (15) bans the making of a

declaration where a child has been adopted. Subhead (16) restricts the court from

making a declaration which would give a child more than two parents. Subheads (17),

(18) and (19) ban the court from making any declaration under the section if the

surrogate is not of at least the prescribed age (18 for pre-commencement, 24 for postcommencement), either of the intending parents has not attained the age of 21, or, in

relation to an arrangement entered after the Scheme has legal effect, a payment

forbidden under Head 18.

 

Subhead (20) provides for rules of court on the information that must be contained in

any application for a declaration under the Head.

 

PART 4

 

FURTHER PROVISIONS RELATING TO PARTS 2 AND 3

 

 

Head 14: Additional orders by the court

 

Provide along the following lines:

(1) When a person applies for a declaration under Head 7, 11 or 13 that he or

she is a parent of a child, the court may direct the applicant to make

further applications concerning guardianship and custody of the child

under Part 7.

(2) When a person applies for a declaration under Head 7, 11 or 13 and, on

the direction of the court or otherwise, for guardianship and custody of

the child under Part 7, the court shall consider and determine the

applications in the same proceedings.

 

Notes

This provision is intended to streamline proceedings so that where a parent applies for

a declaration of parentage and is not a guardian or entitled to lawful custody of the

child, the court may, where appropriate, direct the person to make an application for

guardianship and custody (subhead (1)). Subhead (2) requires the court to consider

and determine such applications in the same proceedings as the application for the

declaration. This is proposed as a mandatory requirement, on the grounds that the

child’s best interests (and those of the parents or any other parties) will be served by

having all relevant proceedings heard in the round and clarity provided as to who has

the rights and duties to take case of the child. It would also promote efficiency by

reducing the requirement for multiple proceedings and court hearings.

34

 

Head 15: Role of the Attorney General

 

Provide along the following lines:

 

(1) In an application made pursuant to Head 7, 11 or 13 of this Act, the court

      may at any stage of the proceedings, of its own motion or on the

     application of any party to the proceedings, direct that all necessary

     papers in the matter be sent to the Attorney General.

(2) Where, on an application under Head 7, 11 or 13 of this Act, the

Attorney General requests to be made a party to the proceedings, the court

shall order that he or she shall be added as a party, and, whether or not he

or she so requests, the Attorney General may argue before the court any

question in relation to the application which the court considers necessary

to have fully argued and take such other steps in relation thereto as he or

she thinks necessary or expedient.

(3) Where the Attorney General is on notice of or made a party to the

proceedings, a declaration under Head 7, 11 or 13 shall be binding on the

State.

(4) Where any costs are incurred by the Attorney General in connection with

any application for a declaration under Head 7, 11 or 13 of this Act, the

court may make such order as it considers just as to the payment of those

costs by other parties to the proceedings.

 

Notes

Under present law, a determination by the court under section 35 of the Status of

Children Act 1987 is binding on the State if the Attorney General is a party to

proceedings. This Head is intended to have the effects section 35(5), (6) and part of

(9) of the 1987 Act currently have. One proposed modification is that subhead (3)

provides that a declaration shall be binding on the State where the Attorney General is

a party to or is on notice of proceedings. The intention is that where the Attorney

General, having been put on notice and reviewed the relevant material, determines

that there is no overriding matter of public interest requiring that she be a party, the

proceedings will be binding on the State without the requirement for further action on

her part. This is in the interests of efficiency and reducing costs.

35

 

Head 16: Effect of declaration of parentage

 

Provide along the following lines:

 

(1) Any declaration made under Head 7, 11 or 13 shall be in a form to be

prescribed and shall be binding on the parties to the proceedings and any

person claiming through a party to the proceedings.

(2)  A declaration under Head 7, 11 or 13 is proof that the person named in

the declaration as the parent of a child is for all purposes the parent of that

child and has all the legal rights, duties and obligations of a parent in

relation to that child.

 

Notes

This Head mirrors the balance of section 35(9) of the 1987 Act in subhead (1)

including that the declaration is binding on parties to proceedings. Subhead (2) sets

out the effect of the declaration. It is intentionally silent as to guardianship – a parent

who would be entitled to guardianship by virtue of the provisions of Heads 30, 37 and

38 will have proof that s/he is so entitled on the making of the declaration, and a

parent who would not be so entitled has all the rights and duties of a non-guardian

parent – including the right to apply for guardianship if s/he wishes (if the court has

not already directed her or him to apply, under Head 14).

 

 

PART 5

 

SURROGACY ARRANGEMENTS

 

Head 17: Surrogacy arrangements

 

Provide along the following lines:

 

(1) A surrogacy arrangement is not enforceable by or against any person

     making it except as prescribed in this Head.

(2) An obligation under a surrogacy arrangement to pay or reimburse the

      birth mother’s surrogacy costs is enforceable but only if the surrogacy

     arrangement is an arrangement made prior to the surrogate conception.

(3) For the purpose of this Act, the “birth mother’s reasonable costs” are the

     birth mother’s reasonable costs associated with any of the following

     matters:

(a) becoming or trying to become pregnant;

(b) a pregnancy or a birth;

(c) entering into and giving effect to a surrogacy arrangement.

(4) The reasonable costs associated with the pregnancy or birth include the

     following:

(a) any reasonable medical costs associated with the pregnancy or

      birth (both pre-natal and post-natal);

(b) any reasonable travel or accommodation costs associated with the

      pregnancy or birth;

(c) any reasonable costs, including reasonable medical costs, incurred

      in respect of a child (being the child of the surrogacy arrangement);

(d)  the cost of reimbursing the birth mother for a loss of earnings as a

       result of unpaid leave taken by her, but only for the following

      periods:

(i) a period of not more than 2 months during which the birth

     happened or was expected to happen;

(ii) any other period during the pregnancy when the birth

     mother was unable to work on medical grounds related to

     pregnancy or birth.

 

(5) The reasonable costs associated with entering into and giving effect to a

      surrogacy arrangement include the following:

 

(a)     the reasonable costs associated with the birth mother and the birth

mother’s partner (if any) receiving counselling in relation to the

surrogacy arrangement (whether before or after entry into the

arrangement);

 

(b) the reasonable costs associated with the birth mother and the birth

      mother’s partner (if any) receiving independent legal advice in

      relation to the surrogacy arrangement or a parentage order related

      to the surrogacy arrangement;

(c) the reasonable costs associated with the birth mother and the birth

      mother’s partner (if any) being a party to proceedings in relation to

      making a parentage order as a consequence of the surrogacy

      arrangement including reasonable travel and accommodation costs.

(6) A cost is reasonable only if:

(a) the cost is actually incurred, and

(b) the amount of the cost can be verified by receipts or other

                  documentation.

 

(7) In this Head “medical costs” do not include any costs that are recoverable

under any health insurance or other scheme or costs which are discharged

by the State and which are not recoverable from the birth mother or her

partner (if any).

 

Notes

This Head provides that a surrogacy arrangement is not an enforceable contract except

in relation to the payment of the birth mother’s reasonable expenses, and then only if

the arrangement was made before the birth mother became pregnant – this is to ensure

that commissioning parents cannot resile from any financial guarantee made to the

birth mother after she becomes pregnant, and likewise that she cannot seek additional

payment after becoming pregnant.

 

 

Head 18: Prohibition on payment for surrogacy

 

Provide along the following lines:

 

(1) A person shall not receive or agree to receive any payment or any other

reward in consideration of entering into or making or implementing a

surrogacy arrangement.

 

(2) A person shall not offer, make or give or agree to make or give any

      payment or other reward the receipt of which is prohibited by subhead

(1).

 

(3) A person shall not receive, make or give or agree to receive, make or give

any payment or other reward in consideration of facilitating the making of

a surrogacy arrangement.

 

(4) Subhead (2) and subhead (3) do not apply if the payment or other reward

      provided for is the reimbursement of a birth mother’s surrogacy costs.

 

 

Notes

This Head prohibits people from making or receiving payments in relation to a

surrogacy arrangement. It is intended to prevent an intending surrogate from receiving

or agreeing to receive payment (other than the birth mother’s reasonable costs), to

prevent intending parents from offering or making payments for someone to enter a

surrogacy agreement with them, and to prevent any intermediaries from offering or

making payments or receiving or agreeing to receive payments in relation to a

surrogacy arrangement.

 

It is not intended to preclude payments to legal practitioners for giving legal advice,

or to medical practitioners for treating the intending parents and / or the surrogate in

relation to assisted reproduction procedures, etc.

 

 

Head 19: Prohibition on surrogacy advertisements

 

Provide along the following lines:

 

(1) A person shall not publish or cause to be published any advertisement,

     statement, notice or other material that:

 

(a) states or implies that a person is willing to enter into or arrange a

     surrogacy arrangement,

 

(b) seeks a person willing to act as a birth mother under a surrogacy

     arrangement,

 

(c) states or implies that a person is willing to act as a birth mother

      under a surrogacy arrangement, o

r

(d) is intended or is likely to induce a person to act as a birth mother

     under a surrogacy arrangement.

 

(2) In this Head “publish” means to disseminate or provide access, by any

      means, to the public or a section of the public.

 

Head

This Head prohibits publication of advertisements concerning entering a surrogacy

arrangement.

 

 

Head 20: Minimum age for surrogate mother

 

Provide along the following lines:

(1) A birth mother who after the commencement of this Act enters into a

surrogacy arrangement shall, before entering that arrangement, have at

least one child of which she has custody (including shared custody), and

shall be at least [24] years of age.

 

(2) If a birth mother entered into a surrogacy arrangement prior to the

commencement of this Act, she shall have been at least 18 years of age

when entering that arrangement.

 

Notes

Legislation in some jurisdictions sets out minimum ages for a surrogate mother, to

provide safeguards for any potential surrogate mother. The minimum age proposed

here is 24: this is so that an intending surrogate is likely to have a reasonable degree

of maturity and some life experience.

 

More importantly, it is a requirement that the intending surrogate already have at least

one child of which she has custody. This is to ensure that she is fully aware of the

possible physical and emotional effects of pregnancy and child-birth and has the

experience of bringing up her own child. Further, there is always some degree of risk

associated with pregnancy (albeit usually very small, in Ireland), and it may be

desirable to ensure that if complications should compromise the intending surrogate’s

future fertility this should not have the effect of forcing her to be childless.

Subhead (2) requires that for a pre-surrogacy arrangement, an intending surrogate

shall have been no less than 18 years old, so that as a minimum she was an adult

under Irish law when making the arrangement.

 

 

Head 21: Minimum and maximum ages for parenting through surrogacy

 

Provide along the following lines:

 

When entering a surrogacy arrangement, each intended parent shall be at least

[21] years of age when entering that arrangement, and at least one intended

parent shall be under the age of [45].

 

Notes

Legislation in some jurisdictions sets out minimum ages for intending parents under a

surrogacy arrangement.

The minimum age criterion is intended to ensure a certain minimum level of maturity.

A maximum age is also suggested, to increase the likelihood that at least one

intending parent will live well into the child’s adulthood.

 

Head 22: Legal advice relating to surrogacy

 

Provide along the following lines:

 

(1) Each party to a surrogacy arrangement concluded after the

 commencement of Part 3 shall, before entering the arrangement, obtain

 legal advice from a legal practitioner concerning the surrogacy

 arrangement and its implications.

 

(2) The birth mother and her partner (if any) shall obtain legal advice from a

legal practitioner independent of and not practicing with the legal

practitioner who provided advice to the intended parents.

 

(3) If any party to a surrogacy arrangement fails to obtain legal advice in

      accordance with subsection (1), the court shall have regard to that fact and

      the reasons for it in determining any application made under this Act.

 

(4) If any intended parent makes a sole application in respect of a surrogacy

      arrangement that involves two intended parents, the Court shall, in

                  determining any such application and in considering all relevant matters,

                  have regard to:

 

(a) the reason why the application is made by only one intended

      parent, and

 

(b) whether the intended parent who is not a party to the application

obtained legal advice from a legal practitioner concerning the

surrogacy arrangement and its implications before the arrangement

was made and concerning any application made or to be made by

the other intended parent pursuant to Head 13.

 

(5) Where an application referred to in subsection (4) is made, the Court may,

of its own motion or on the application of any party to the proceedings,

direct that notice of the application be furnished to the other intended

parent and that such intended parent be added as a party to the

proceedings if the Court deems it appropriate and in the best interests of

the child who is the subject matter of the application made.

 

Notes

 

Subheads (1) and (2) provide that each party to a surrogacy arrangement must obtain

legal advice before making the arrangement so that they will fully understand the

consequences of the arrangement for them, and that the birth mother and the

commissioning parents must obtain legal advice from separate and independent legal

practitioners. This is to ensure that there is no conflict of interest which might result in

a party to the arrangement being less well advised.

 

Subhead (3) allows the court to consider as a factor that one of the parties did not

obtain proper legal advice when making an order under the Act.

 

Subheads (4) and (5) make additional provision concerning applications under Head

13. Where only one intended parent makes an application for a declaration where the

arrangement had included 2 intended parents, the court may have regard to that fact

and the reasons for it – which could include break-up, death, incapacity – and may

direct that the other party (if living) be put on notice of proceedings. This is a

safeguard for the benefit of all parties, including the child, but particularly for an

intending parent who is not a party to an application.

 

Head 23: Offences and penalties

 

(1) A person is guilty of an offence if the person contravenes Head 18 (1), (2)

      or (3) or Head 19 (1).

 

(2) A person guilty of an offence under subhead (1) of this Head is liable on

      summary conviction to a class A fine or imprisonment for a term not

      exceeding 12 months or both.

 

(3) Where an offence under this Act is committed by a body corporate or by a

person purporting to act on behalf of a body corporate or an

unincorporated body of persons and is proved to have been committed

with the consent, connivance or approval of, or to have been attributable

to any wilful neglect on the part of, any person who, when the offence

was committed, was a director, a member of the committee of

management or other controlling authority of the body concerned, or the

manager, secretary or other officer of the body or a person who was

purporting to act in any such capacity, that person shall also be guilty of

an offence and shall be liable to be proceeded against and punished as if

guilty of the offence.

 

(4) Where the affairs of a body corporate are managed by its members,

subhead (3) shall apply in relation to the acts and defaults of a member in

connection with his functions of management as if he were a director of

the body corporate.

 

(5) In any proceedings for an offence under subhead (1) proof of things done

or of words written, spoken or published, (whether or not in the presence

of any party to the proceedings) by any person taking part in the

management or the control of a body of persons or of any of the body or

by a person doing any of the acts proscribed on behalf of the body, shall

be admissible as evidence of the activities of the body.

 

(6) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851,

proceedings for an offence under this Act may be instituted at any time

within 2 years of the date of the offence or within 2 years from the date

on which evidence is first disclosed to the person by whom the

proceedings were brought which is sufficient to justify the bringing of the

proceedings.

 

Notes

 

Subhead (1) establishes that it is an offence to make or agree to make or receive or

agree to receive any payment in relation to a surrogacy arrangement which is

prohibited under Head 18. The following persons may be guilty of an offence: a

surrogate or intending surrogate, intending / commissioning parents, and any

intermediary. It is also an offence to publish or cause to be published certain

advertisements relating to surrogacy prohibited by Head 19.

Subhead (2) establishes the relevant penalties.

 

Subheads (3) to (5) make certain provisions in relation to where an offence is

committed by a body corporate (such as an intermediary or a publisher). Subhead (6)

is a standard provision relating to the timeframes within which proceedings are

brought.

 

 

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