Dr. Deirdre Madden:

I strongly welcome the intention of the Bill to create a legal structure to underpin diverse parenting situations and provide legal clarity on parental rights and duties. That is long overdue and in keeping with the rights of the child to private and family life under the European Convention on Human Rights and the UN Convention on the Rights of the Child. I wish to highlight a few key points from my detailed submission to the committee on parentage and assisted reproduction and surrogacy.
The aim of this part is to provide clarity and certainty in the legal relationship between children born through assisted reproduction and their parents. However, in my opinion the wording used in the scheme is very convoluted and does not facilitate the necessary clarity to be easily obtained. There are many examples from other jurisdictions of simpler wording which achieve the same objectives such as the Family Law Act 2011 from British Colombia in Canada. I would urge careful drafting of these provisions to resolve any ambiguity and avoid protracted and costly litigation.
The Bill appears to deal with parentage from the perspective of the adults involved in the child’s conception rather than the child himself or herself. It does not grant any recognition to the child of a right to identify the donor whose reproductive material was used in his or her conception. Given that the stated aim of the Bill is to ensure that the best interests of the child are paramount it is regrettable that the opportunity has not been taken to set out clearly in legislation that it is in the best interests of any child born through assisted reproduction to have the right to identify its genetic parent if the child so chooses.
Head 10(9) provides that the consent of an intended parent is not valid after the death of that intended parent. In many other jurisdictions posthumous conception is recognised as a valid exercise of reproductive autonomy and there are couples in Ireland who would like to avail of this option in the event of the death of one of the partners. I have outlined in my submission the mechanism whereby posthumous insemination might be permitted based on the written consent of the deceased partner and I would urge the committee to give further consideration to these proposals.
Surrogacy can be a very positive option for many couples who are trying to build a family. I commend the proposed scheme for setting out to regulate rather than to prohibit surrogacy as experience in other jurisdictions has shown that prohibition only serves to drive surrogacy underground with consequently little protection for those involved.
The policy on surrogacy in the Bill is that the birth mother is always the mother but that an application for parentage may be made to the court by the genetic father and his partner, or the genetic mother and her partner. This is subject to the consent of the surrogate. It is important to point out that in the event that the Supreme Court upholds the High Court decision in MR v. An tArd-Chláraitheoirthe policy of the Bill will require substantial revision in this respect.
The policy of the Bill is clearly to facilitate gestational surrogacy only, that is, where the surrogate does not use her own eggs or have any genetic relationship with the child. This means that where the intended mother is unable for medical reasons to provide the eggs, she and her partner must find an egg donor who is willing to donate. The introduction of a third woman into the conception of the child is unnecessary and not consistent with the best interests of the child in circumstances where the surrogate mother might be willing to give valid consent to the use of her own eggs in the arrangement.
The stated policy rationale here appears to be based on a negative bias against traditional surrogacy which is neither appropriate nor justified. The language used presumes that the surrogate mother who is genetically related to the child either abandons the child or is forced to relinquish or sell it. There is no acknowledgement that many women volunteer to become surrogate mothers using their own eggs because they want to help others to have a child. They generally do not consider the child they are carrying to be their own child.
It is also stated that the exclusion of traditional surrogacy is intended as a human rights measure “to prevent a surrogate mother from being coerced into selling her own child”. For women who volunteer to become surrogates for altruistic reasons, such as family relatedness or friendship and are willing to use their own eggs - no money changes hands, there is no financial coercion or exploitation, and therefore this policy rationale does not apply. It is difficult to see how prohibiting a surrogate mother from using her own eggs prevents potential exploitation. While I accept that there may be concerns in relation to potential exploitation of women of lower socioeconomic class, the avoidance of such potential exploitation will not be achieved by this Bill.
The language used also leads us to conclude that women are unable to make a decision to become surrogates without being forced or coerced. Language is important in the law – this is not facilitating a black market in babies, there is no sale of a child here - children are not capable of being owned and therefore cannot be bought and sold as a commodity. In surrogacy there is a transfer of parental rights to one or more of the child’s genetic parentsfollowing an agreement entered into between consenting adults as part of which the surrogate’s expenses over the period of the pregnancy may be reimbursed.
Under the current proposals a declaration of parentage may only be made with the consent of the surrogate, unless she is deceased or cannot be located. Where she refuses to give consent, she will remain the legal mother, can receive the agreed payment, and presumably can seek a court order for maintenance against the genetic parents. The genetic father may apply for guardianship, which is not automatic. The genetic mother cannot apply for guardianship as the surrogate mother is regarded as the legal mother. This position is patently discriminatory against women in circumstances where both of the intended parents' own genetic material is used. I strongly recommend the adoption of a judicial pre-authorisation model similar to California or New Hampshire in the United States which ensures independent judicial scrutiny of the arrangement, oversight of the voluntariness of all parties, and the prioritisation of the best interests of the child which in almost all surrogacy cases will be to be regarded as the legal child of its intended genetic parents from the moment of birth.
Finally, although the Bill does make provision for reasonable expenses to be paid, the consequences of transgression are extremely harsh and result in potential criminal prosecution as well as loss of eligibility to apply for a declaration of parentage. In such circumstances, what is the outcome for the child? Who are the legal parents? If a court were asked to decide on the parentage of a child in such circumstances, the court would surely be obliged to prioritise the best interests of the child irrespective of whether the provision relating to payment was violated, the result of which in most cases would be to grant parentage and custody to the intended parents. Therefore the policy is likely to be ignored in practice as has occurred in other jurisdictions.