Dr. Lydia Bracken:

I thank the Chairman and members of the committee for inviting us to attend today's hearing.

Our submission concentrates on the proposed regulation of surrogacy as set out in the Bill, with a particular focus on how the proposed regulation would affect male couples who have already become parents through surrogacy and those who may seek to do so in the future. In our view, the proposed regulation of surrogacy as set out in the Bill would not adequately protect the best interests of children born through surrogacy, so amendments are required. A major issue in the proposed regulation is that there is no provision in the Bill to recognise children who have already been born through surrogacy. For male couples, this means there is no facility to retrospectively recognise both men as joint legal parents of their child. The only option is for the couple to apply for second parent adoption, which we do not believe to be an adequate solution. By contrast, where a child has been born through donor assisted human reproduction, DAHR, once Parts 2 and 3 of the Children and Family Relationships Act 2015 are commenced, the intended parents will be able to retrospectively apply to be jointly registered as legal parents. A similar process should be put in place for surrogacy.

International surrogacy is currently excluded from the Bill, meaning that the legislation will only apply to domestic arrangements. This is problematic because the exclusion of international surrogacy from the Bill will not prevent couples from accessing services abroad. It simply creates significant difficulties for the family when they return to Ireland with their child. The child has no control over the circumstances of conception and so should not be disadvantaged by virtue of the fact that he or she was conceived through surrogacy abroad. We argue that it is in the best interests of the child for his or her relationship with the intended parents to be legally recognised in Ireland following the international surrogacy arrangement.

We also believe that the model of parentage that is proposed in the Bill, whereby the surrogate is recognised as the legal mother at birth and parentage is later transferred to the intended parents by way of a parental order, is inappropriate. A major difficulty that arises with this delayed or post-birth model of parentage is that, at the time of the child’s birth, the non-genetic father is not recognised as a legal parent and cannot be recognised until the time that the parental order is granted. The application for the parental order cannot be made earlier than six weeks and not more than six months after the child's birth. This approach leaves the child in a vulnerable position as he or she is cared for from birth by the intended parents, one of whom will not have any legal parental responsibility or decision making powers for at least six weeks. Instead, the surrogate, as the legal mother, retains decision making responsibility for the child until the time the parental order is granted.

We argue that a pre-conception model of parentage would better protect the rights of all stakeholders in the surrogacy process. Pre-conception court orders would provide approval of the surrogacy arrangement and determine the parentage of the child before conception takes place. This would ensure that both of the intended parents have full legal powers to care for the child and ensure that the child is legally integrated into his or her family from the moment of birth.

Certain additional issues relating to assisted human reproduction are of particular concern to LGBT Ireland members, such as non-clinical DAHR procedures and international DAHR. While we acknowledge that these issues are not addressed in the Bill and are, perhaps, outside of the scope of today's hearing, we believe that they are in need of attention. The Bill could be used as a way to amend the Children and Family Relationships Act 2015 to ensure that it accommodates the widest range of families possible. These areas, and our recommendations for reform, are discussed in detail in our submission and we are happy to speak to them today should any member wish to do so.