Professor Conor O'Mahony:

I thank the committee for the invitation to speak today. By now, members will be well aware the Health (Assisted Human Reproduction) Bill 2022 offers Ireland an opportunity to address a very long-standing gap in our laws which has long been a cause of concern to international human rights bodies and our Supreme Court, among others, for some time. The absence of any legal framework on surrogacy has led to a considerable number of Irish families living in a legal twilight zone whereby a child is a legal stranger to one or both parents and the right to family life and right to identity of the children is not recognised. This is contrary to the best interests of children and fails to observe the principle of non-discrimination.

In 2020, the Government requested that I examine the issue of donor-assisted human reproduction, DAHR, and surrogacy, specifically through the lens of the rights and best interest of children. In response to this request, I produced a report in December 2020 that made 27 recommendations for legislative reform, drawing on international human rights law, an analysis of best practice in other jurisdictions and a detailed survey of recent academic literature on children’s rights in surrogacy.

In its current form, the Health (Assisted Human Reproduction) Bill 2022 would implement just two of those 27 recommendations, namely, that domestic surrogacy be limited to altruistic surrogacy and that legal advice would be available to potential intending parents. The remaining 25 recommendations are not reflected in the Bill as it currently stands. If the Bill is enacted without considerable amendment, it will be contrary to children’s rights and best interests in a range of ways.

I will give a quick summary now because I provided a briefing paper that goes through this in more detail. First, and of most interest to this committee, the Bill only addresses domestic surrogacy arrangements. It makes no provision, as members are aware, for any legal framework addressing international surrogacy arrangements. There is a reality here that even if domestic surrogacy is regulated, there will be a continuing number of Irish families who will engage in international surrogacy, whether due to a lack of availability of surrogate mothers in Ireland or for other reasons. The proposed approach in the Bill of leaving the current void in relation to international surrogacy in place amounts to keeping our head in the sand. It is contrary to children’s rights principles on a number of counts. Most obviously, it creates a discriminatory position whereby children born through domestic surrogacy arrangements receive a very different level of legal protection compared to children born following international surrogacy arrangements. It fails to vindicate the right to family life of children born following international surrogacy. It provides no framework for providing their right to identity. It will heighten the risk that some of those children will experience statelessness. In addition, it fails to account for a number of recent judgments of the European Court of Human Rights requiring states' parties to provide a pathway to parentage for children born following international surrogacy.

Second, the Bill makes no provision for retrospective recognition of family relationships arising from domestic surrogacy arrangements which occurred prior to our international surrogacy arrangements, which took place prior to the enactment of the Bill. Once again, this violates the principle of non-discrimination by treating children differently based on the circumstances of their birth. It again fails to respect their right to family life.

The Bill only currently proposes that children born following surrogacy arrangements would be allowed to access identifying information relating to surrogates or gamete donors from the age of 16. This is contrary to the legal position which states that the right to identity is a right of all children, and not only a right of children above a certain age. Equally, it fails to account of extensive research that shows that children who are made aware of the truth of their identity at an early age have better well-being outcomes than children or adults who only learn the truth at an older age. From that perspective, my report recommended that identifying information should be available from birth, initially to the child's parents, who would exercise the right to identity on behalf of the child and then, subsequently, to the child above a certain level of age and maturity. Unfortunately, that is not reflected in the Bill in its current form.

Fourth, the Bill makes no proposals to address a number of important anomalies which arise in the law governing donor-assisted human reproduction, even though we enacted legislation in 2015 governing donor-assisted human reproduction. That legislation results in some children falling outside the scope of the protection of that legislation and not having their family relationships recognised. My report made a number of proposals for filling those gaps and ensuring that all children would be treated equally. However, again, there are no proposals in the Bill in respect of that.

Finally, in respect of the transfer of parentage in domestic surrogacy, the Bill proposes a post-birth transfer of parentage. My report recommended a pre-birth transfer of parentage to avoid a gap arising in time between the birth of the child and the transfer of parentage, during which time the intending parents would have no right to make decisions in respect of medical treatment of a newborn baby who perhaps might be unwell, premature, or so on. That will appear to be contrary to the best interest of the child. However, the Bill, as I said, has settled on the post-birth transfer of parentage, which allows that gap to arise.

There are other points, but those are the main ones that I wish to highlight. My report goes through all of this in more detail. The briefing paper which I provided for members today itemises the recommendations in the report and benchmarks them against the Bill so they can see clearly where the disconnects arise. I look forward to discussing all of this with members.