Dr. Lydia Bracken:

I thank the Senator for her questions. She asked about the European Court of Human Rights, ECHR. The case law from the European Court of Human Rights is primarily Mennesson v. France, which essentially established that where there is a genetic relationship between an intending father and the child and where that father is also listed on the foreign birth certificate as the legal father, an obligation arises to legally recognise that relationship on the basis that it would be a violation of the child's right to private life if it was not recognised within domestic law. That kind of set the initial standard for what types of relationships need to be recognised.

It was followed in 2019 by an advisory opinion on gestational surrogacy, which again was issued to France in a case concerning the same Mennesson family. Although the father was recognised in the case, the intended mother had not been recognised initially at least. The question was whether that relationship also needed to be recognised. The advisory opinion set out that in order to vindicate the rights of the children, the relationship between the children and the intending mother, where she is listed on the birth certificate in a position where she is married to the intending father, who has already been recognised for the purpose of domestic law, another duty of recognition arises based on consideration of the rights of the child.

The status of the advisory opinion is that it is not binding and it is an optional mechanism that states can enter into in getting guidance and advice in how the ECHR case law might operate. However, I have published on this and given the opinion that it establishes the standards that the court would adhere to. If a case was to be brought against Ireland on this matter, it is quite likely, based on the standards set in the advisory opinion, that we would be found lacking because we do not currently have a mechanism that would recognise the relationship between an intending mother and the child in the way the advisory opinion requires us to do. Something like guardianship does not meet the standard because it is not a permanent relationship and it does not have the same status as that of legal parentage. On the question of whether we could ever prohibit surrogacy, we could not do that based on the jurisprudence from the European Court of Human Rights because we have the obligation to recognise certain parent-child relationships in order to vindicate the rights of children. I hope that answers the question on ECHR case law.

The Senator mentioned parental orders and guardianship and referred to "sanctions". It is probably not the most accurate description of what it would be. It would essentially be the fallback position if parentage cannot be recognised for whatever reason. In the proposal I have put forward in the briefing document provided to the committee, I have suggested that we should ultimately get to a position whereby parentage established on a foreign birth certificate would be recognised in Ireland, whether it is by way of a parental order being recognised or some other, possibly administrative, mechanism to recognise that parentage unless it is fundamentally contrary to Irish public policy. When we are determining what public policy means in the context of surrogacy, we need to establish an ethical framework for surrogacy within Ireland and we would determine any cases by reference to that or if it would be in the best interests of the child to deny that recognition.

If parentage cannot be established for whatever reason, we must put in place a mechanism that does not penalise the child. Allowing guardianship to be awarded at least accommodates the child's rights in that regard. Based on ECHR case law, a genetic relationship would need to be recognised regardless of whether the procedure falls outside the agreed ethical framework. We must consider the child's rights in that regard. Ultimately, in a particular case the decision must come down to what is in the best interests of the child and whether guardianship or parentage would be most suitable in that regard. That is what I see as the kind of fallback position. It really takes a case-by-case or individualised approach to ensure the best interests of each individual child are being maintained within the process. I hope that answers the Senator's questions.