Ms Claire O'Connell:

I appear today on behalf of LGBT Ireland as a board member. I am also the chairperson of the Assisted Human Reproduction Coalition's medico-legal subgroup and have been carrying out a PhD in this area of law for six years. Therefore, while I am, unfortunately, unable to contribute to the very personal and moving stories and lived experiences of the other members of the coalition today, I hope I will be able to answer any of the more legal questions that may arise in the course of the morning.

My primary aim today, however, is to give the committee an understanding of the specific challenges facing same-sex parents and their children in the absence of a clear framework for international and retrospective surrogacy.

However, I am also conscious the 2022 Bill is an opportunity to remedy some of the other issues that affect our membership, specifically in the context of donor-assisted human reproduction, DAHR. Therefore, I intend to set out some of the issues, together with issues arising from the current proposals contained in the 2022 Bill and will be happy to elaborate on them further throughout the meeting.

In 2014, the Supreme Court recognised the wide-ranging discretion afforded to the Oireachtas in determining parentage in circumstances where the gestational and genetic motherhood is split. Soon thereafter, the Children and Family Relationships Act 2015 was enacted. This Act states the woman who gives birth to the child is the legal mother of that child. As a result, we have created a pathway for parentage for intending parents who do not have a genetic link to the child born through donor-assisted reproduction. However, we did not create a pathway where there is no gestational link to the child within the intending parent relationship, and that is what the 2022 Bill was supposed to remedy through the regulation of surrogacy.

That is not to say all couples with a gestational element between them were recognised or given a pathway to parentage in the 2015 Act. The 2015 Act excluded all male couples having a child together, retrospective declarations of parentage in respect of same-sex female couples who used a known donor, any level of self or assisted insemination that took place outside of a fertility clinic, a presumption of parentage in respect of female couples given this presumption still arises primarily by virtue of biological connection, children conceived through DAHR not born in Ireland, both retrospectively and prospectively, and children conceived outside Ireland to an Irish couple but born in Ireland prospectively. In addition, where a same-sex female partner falls outside the criteria of the 2015 Act, there is no mechanism to establish the parental connection between the child and the person who provides the day-to-day care and love for that child, and guardianship is only available after a period of two years. Primarily, this results in a situation in Irish law whereby children are being treated differently depending on the sexual orientation of their parents and the circumstances of their conception in matters of legal status, social status and especially inheritance and citizenship.

The same issue arises in respect of every person who is excluded from a pathway to parentage under the 2022 Bill which, if enacted in its current form, excludes anyone who is engaged in a surrogacy agreement that has already taken place, those that will take place until the commencement of the 2022 Bill, and those that take place after commencement where the surrogacy agreement is entered into internationally or outside of the framework proposed. This will primarily impact couples or individuals experiencing infertility and countless male couples who wish to parent a child together. There are also a number of further issues with the framework as proposed for domestic surrogacy in the 2022 Bill. Section 16 provides for the AHR treatment provider to carry out assessments of the attendant parents as to the potential significant risk of harm or neglect to any child that may be born from the AHR treatment or any other child. This is not applied to any persons engaging in natural conception, which is out of reach of same-sex couples, nor does it apply to donor-assisted reproduction under the 2015 Act. This section imposes a presumption of risk we deem inappropriate.

We are grateful to see section 38 proposing to allow gamete storage for children undergoing medical treatment that is likely to cause a significant impairment to a child’s fertility. However, we would like to see this provision explicitly include transgender children who are starting hormone therapy or undergoing surgery to remove or alter their reproductive organs.

We would like to see an equality audit of the proposed legislation. This would include a review of the terminology. For example, it defines a gamete as "a human sperm ... formed in the body of ... a man, or ... a human egg ... formed in the body of ... a woman". Part 4 on posthumous AHR appears to presuppose at least one of the couple will be female and that the surviving partner must be female. This seems to exclude all posthumous AHR involving male couples where, for example, the surviving male partner may experience infertility and have relied on the use of an embryo formed before the death of his partner. The requirement for a genetic link excludes all individuals who experience infertility regardless of sexual orientation and is particularly unwarranted in light of the availability of double donation in DAHR under the 2015 Act.

In addition to the requirement for a genetic link, the gamete in AHR treatment must also be successfully screened in line with the 2006 regulations. Schedule 3 to regulation 11 of same sets out that a person providing a gamete must be negative for HIV 1 and 2. This applies to any donation other than partner donation. In this regard, I note HIV Ireland sets out that gay men are the group most affected by HIV in Ireland and accounted for 56% of diagnoses in 2018. It would be useful if clarification could be provided on whether, in the context of surrogacy, the surrogate and the person who provided the gamete and tests positive for HIV 1 or 2 are considered partners in this context or whether such persons would be excluded. This is in the context of a recent French study involving 5,000 people that reports HIV transmission between the pregnant person and the child is reduced to 0% where the pregnant person was taking HIV treatment at the time of conception, had an undetectable viral load at childbirth and did not breastfeed.

There is no pathway to guardianship for a non-biological parent at the point of birth without the consent of the surrogate mother and therefore no pathway to legal custody of the child despite the requirement the child must be living with the intended parent or parents in order for the parental order to be granted. We do not believe the post-birth model to parentage is appropriate and we believe it is in the best interests of the child to have legal certainty from birth. This can be achieved through a pre-conception preliminary approval process coupled with a pre-birth court model. Ultimately, we suggest the best approach is a system of regulation whereby the rights of the child, surrogate and intending parents are balanced equally. The assignment of parentage should be adjudicated upon case by case having regard to a set list of principles. These principles should include the best interests of the child and the right to his or her origins, the bodily autonomy and agency of the surrogate, and the right to respect for family life of the intending parents.

As a final point, no framework should directly or indirectly cause a system of discrimination against LGBTI+ individuals based on previous understandings of what constitutes a sufficient basis for parentage, whether that be biological connection marriage or the consent of the mother. I am grateful for members’ time and would be happy to answer any questions they may have.