Dr. Lydia Bracken:

Regarding children who have already been born through surrogacy, I would strongly argue that issue needs to be prioritised in the legislation. Many children living in Ireland have been born through surrogacy and their family relationships are not recognised at present. They are left in the really undesirable position of not having a permanent legal relationship with both of their parents, so that absolutely needs to be addressed. I have proposed a model similar to that in sections 20 to 22, inclusive, of the Children and Family Relationships Act, which allows for retrospective declarations of parentage to be made in cases of donor-assisted human reproduction, DAHR, that were undertaken prior to the commencement of the legislation. Something similar in the case of necessary adoptions could be used successfully in the context of children who have been born through surrogacy. That would allow the intending parents to apply to court for this declaration of parentage to recognise either of the intending parents, or perhaps both of them, who are not at that point recognised as legal parents, provided certain proofs are given to the court. This appears to be a relatively straightforward process in the context of DAHR, so I would argue it should also be a very simple process for surrogacy in respect of surrogacy that has already taken place. As we have the model for it within sections 20 to 22, inclusive, of the Children and Family Relationships Act, that is the model I would propose for the retrospective recognition of parentage.

As for the pre-birth or post-birth recognition of parentage, I draw a distinction between domestic surrogacy, which can be facilitated through the pre-conception approach, and international surrogacy, for which a post-birth approval process makes sense, simply on the basis it would be difficult for the State to sanction in advance parentage that has been established through a procedure undertaken abroad. That is not to say it could not happen, and perhaps an application during the pregnancy would be possible, but the post-birth transfer of parentage in international surrogacy would allow the Irish courts to check that certain ethical safeguards have been adhered to throughout the pregnancy, up to the birth of the child. It is not a perfect system by any means, given it means that when the child has been born, for the purposes of Irish law he or she may not have that legal recognition in respect of the relationship with the intending parents. Nevertheless, what I have proposed is that where the intending parents have both been listed on the foreign birth certificate, we might have something of a fast-track application process in Ireland, whereby they could obtain a parental order recognising both of them as legal parents, and the application would be granted unless it were fundamentally contrary to an agreed ethical framework for surrogacy within Ireland. Having a post-birth judicial process would allow for scrutiny of the ethical standards to ensure we maintain the integrity of the ethical framework and ensure that recognition is based on it. Moreover, it would allow for consideration of the best interests of the child in that process. That is primarily why I believe a post-birth process in regard to the international arrangement would be the more appropriate way forward but in the case of domestic surrogacy, I would support a pre-conception transfer of parentage.