Ms Tracy O'Keeffe:

I thank the Cathaoirleach and the members of the committee for inviting the Department of Justice to discuss issues relating to international surrogacy. I am a principal officer in the civil justice legislation function of the Department of Justice. I am joined by Mr. Andrew Munro, assistant secretary, who has responsibility for civil justice policy and legislation.

International surrogacy arrangements raise complex and important questions of rights and ethics concerning areas of law that intersect across the remits of several Government Departments. There has been substantial work and engagement on issues relating to international surrogacy between the relevant Ministers and Departments. The issues paper on international surrogacy which has been provided for the assistance of the committee sets out the current legal position on international surrogacy, the issues and key challenges that arise in this area and possible options for dealing with the issues arising. The issues paper was drafted jointly by the Departments of Justice, Health, and Children, Equality, Disability, Integration and Youth.

The issues paper outlines the current position in Irish law relating to the legal parentage and guardianship of children born as a result of surrogacy arrangements. In Irish law, legal motherhood is based on birth rather than genetics. The birth mother of a child has automatic rights of parenthood and guardianship over the child. Under Irish law, the genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child under the Status of Children Act 1987. If the declaration of parentage is granted, the father may apply for guardianship under section 6A of the Guardianship of Infants Act 1964.

An intending mother of a child born through surrogacy, while not the legal mother of the child under Irish law, may apply to a court to be appointed a guardian of the child under section 6C of the Guardianship of Infants Act 1964. The legal position is the same for a male intending parent who is not the genetic father of the child.

Article 42A of the Constitution is relevant to the rights of children born as a result of surrogacy arrangements. The European Court of Human Rights has considered cases relating to international surrogacy arrangements in the context of a child’s right to respect for his or her private life under Article 8 of the European Convention on Human Rights.

As regards international initiatives, an expert group set up by the Hague Conference on Private International Law, which is examining private international law issues relating to the legal parentage of children and international surrogacy arrangements, is expected to submit its final report in 2023. It is expected that the European Commission will propose a legislative initiative later this year on recognition of parenthood within the European Union.

In February 2021, a group of experts in international law and human rights adopted the Verona principles for the protection of the rights of the child born through surrogacy. These principles were drafted to assist states and other stakeholders and to provide guidance on legislative, policy and practical reforms on the upholding of the rights of children born through surrogacy.

To return to the Irish context, the report of the special rapporteur on child protection, A Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law, was published in early 2021. The special rapporteur made a number of recommendations relating to international surrogacy and the position of intending parents of children who have already been born through surrogacy arrangements. These recommendations, which have been considered and discussed by the relevant Ministers and Departments, present some challenges and difficulties, which are described in the issues paper. The issues paper sets out some options that the committee may wish to consider to address issues relating to international surrogacy. The list of options is not exhaustive and is not intended to limit the committee's consideration of the issues.

The issues paper describes the key issues and challenges relating to international surrogacy. In addressing those issues, care must be taken to ensure that consideration is given to the rights, interests and welfare of all persons involved in international surrogacy arrangements - children born through surrogacy, surrogate mothers and intending parents. These include, in particular, the need to ensure protection of the genetic identity rights of children born through international surrogacy and the need to ensure proper safeguards for surrogate mothers. I am happy to answer any questions that committee members may have.