Health (Assisted Human Reproduction) Act 2024

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Approval of surrogacy jurisdiction

81. (1) The AHRRA may, after consultation with the Minister and the Minister for Foreign Affairs and having regard to the matters specified in subsection (2) for the purposes of this subsection, by order approve a surrogacy jurisdiction specified in the order, with effect from a date specified in the order for the purpose, as a jurisdiction in which an international surrogacy may be undertaken if the AHRRA considers that such approval is appropriate in all the circumstances of the case.

(2) The matters which the AHRRA shall have regard to for the purposes of deciding whether or not to approve under subsection (1) a surrogacy jurisdiction as a jurisdiction in which an international surrogacy may be undertaken are as follows:

(a) the law of the jurisdiction relating to surrogacy, including whether or not that law—

(i) permits a commercial surrogacy referred to in section 93 , and

(ii) requires intending parents or one of them (or, in the case of a single intending parent, that intending parent) to be resident or domiciled in the jurisdiction;

(b) without prejudice to the generality of paragraph (a), the protections afforded under the law of the jurisdiction to children that may be born as a result of AHR treatment (SJ) in the event of any such children not receiving adequate care and protection;

(c) the ability of the AHRRA to monitor compliance with the provisions of this Part of an international surrogacy undertaken in the jurisdiction;

(d) any civil or military activities, or potential civil or military activities, relating to the jurisdiction that may present a potential significant risk of harm to any person participating, in any capacity, in an international surrogacy undertaken in the jurisdiction;

(e) the law of the jurisdiction relating to medical professionals undertaking surrogacy in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such professionals and the nature and degree of such oversight;

(f) the law of the jurisdiction relating to persons acting as intermediaries (if any) in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such intermediaries and the nature and degree of such oversight;

(g) the extent to which the law of the jurisdiction—

(i) provides for the rights of pregnant women, including surrogate mothers, as regards their health, privacy and bodily autonomy,

(ii) makes no distinction, as regards the rights referred to in subparagraph (i), between pregnant women who are not surrogate mothers and pregnant women who are surrogate mothers, and

(iii) is enforced as regards the rights referred to in subparagraph (i).

(3) Subject to subsection (4), the AHRRA may, after consultation with the Minister and the Minister for Foreign Affairs, by order, revoke the approval under subsection (1) of a surrogacy jurisdiction specified in the order, with effect from a date specified in the order for the purpose, if, at a subsequent time, the AHRRA considers that, if that jurisdiction were not so approved and having regard to the matters specified in subsection (2) for the purposes of subsection (1), such approval would not be appropriate in all the circumstances of the case.

(4) The revocation under subsection (3) of the approval of a surrogacy jurisdiction under subsection (1) shall not affect an international surrogacy, undertaken in that jurisdiction, the subject of a surrogacy agreement (SJ) that has been approved under section 90 before the date, specified in the order concerned under subsection (3), on which that revocation takes effect.

(5) For the avoidance of doubt, it is hereby declared that the revocation under subsection (3) of the approval under subsection (1) of a surrogacy jurisdiction shall not be construed to prevent that jurisdiction from again being so approved.