Dr. Thomas Finegan:

I will address a couple of the issues pertaining to the wider general scheme of the children and family relationships Bill.

Legislators have a wide degree of discretion as to how to shape this piece of legislation. There is no Supreme Court ruling and no finding against Ireland by the European Court of Human Rights mandating a particular and rigid approach to all parts of the Bill.

It should be noted that underpinning parts 3 and 5 and aspects of part 12 of the general scheme is a strong policy preference in favour of a right to have a child by artificial or commercial means, that right being a dimension of adult reproductive autonomy. As a matter of law, the Constitution does not contain, in either enumerated or unenumerated form, such a thing as a right to have a child via artificial or commercial means. This is also true of the European Convention on Human Rights, the jurisprudence pursuant to the convention, and international human rights law generally. Thus, none of those instruments requires Ireland to make positive legislative provision for commercial services or private arrangements which aim to satisfy adult demand for the creation or production of a child. In the alternative, both domestic and international law support a child's right to have his or her best interests govern all state actions directly affecting them. Those are merely legal points.

Turning to substantive policy points at issue here, no doubt many parts of the proposed Bill take serious account of children's best interests. I refer especially to parts 7, 10 and 11. However, it is submitted that certain parts of the general scheme clearly privilege equal adult reproductive autonomy over and above the best interests of the child. The general scheme's policy preference in favour of an adult's right to have a child via a commercial or artificial means consistently trumps the child's best interest in parts 3 and 5 and in certain heads of part 12. For example, no consideration is given to a child's right to have two parents. This relates to a single adult's right to avail of AHR services and surrogacy arrangements. No consideration is given to a child's right to the society and support of his or her genetic or natural parents. This is in relation to the permissibility of anonymous gamete donation and heterologous gametes donation in parts 3 and 5. No consideration is given to a child's right to know the identity of his or her genetic parents re the permissibility of anonymous gamete donation in parts 3 and 5. No consideration is given to the child's interest in having parents who are likely to live for the duration of the child's upbringing re the lack of upper age limits in part 3 for adults seeking to avail of AHR services. Finally, the Bill will knowingly and expressly deprive children of either a mother or a father. This is in relation to the provision for the right of a single person to avail of AHR services in surrogacy arrangements in parts 3 and 5 and the right of civil partners to jointly adopt a child in part 12.

We can see that children's best interests are only permitted expression in the general scheme where there is little or no danger that such interests will clash with adults' interests in equal reproductive autonomy. Where the right to reproductive autonomy is treated as near absolute as it is, the children's best interests are virtually ignored. They merit mention in neither the relevant textual provisions of the general scheme nor in the relevant accompanying notes, and that is no accident.

In effect, the new affirmation - it is a new affirmation - of such a thing as a right to a child indicates the commodification of procreation. The child's origin and upbringing is made subject to freedom of reproductive contract. This places Ireland, by the way, as an outlier in the European context. This is permissive by European standards. Both the child's best interests and the adult reproductive autonomy cannot be vindicated fully. One has to be subservient to the other. It is clear under the general scheme, as currently constituted, that adult reproductive autonomy trumps children's best interests.