Ms Fiona Duffy:

I thank the committee for affording me the opportunity to appear here today. My interest in the area of assisted human reproduction dates back the 1990s. It was not for at least another ten years before it began to form part of my work as a solicitor. Over the years I have worked with individuals and couples dealing with fertility issues, including surrogacy. I realised at a very early stage that not only is this area complex from a medical perspective, but that it is also extremely complex from a legal perspective. It is constantly evolving and developing.

I have been asked to address the committee on the particular issues faced by same-sex couples, both male and female, entering international surrogacy arrangements and achieving parental recognition in Ireland. As a preliminary, I believe it might be useful to address how parental recognition is currently obtained for parents who have had a child through surrogacy.

The first point to note is that irrespective of where the child is born, whether in Ireland or abroad, the child’s position vis-à-vishis or her parents is exactly the same under Irish law. That said, there is an advantage to be had in going abroad, as in most countries where surrogacy is possible the intending parents are named on the birth certificate at birth or pursuant to a post-birth court order. In Ireland, however, the surrogate mother is named on the birth certificate, and this cannot be changed.

The position of same sex male parents through surrogacy is not very dissimilar to that of opposite sex parents, apart from the fact that some countries will not provide surrogacy services to a same-sex male couple. Under Irish law they are treated the same. Only the genetic male parent can have

his relationship with the child recognised under Irish law. The non-genetic male, or second parent, is in exactly the same position as the female in an opposite sex relationship: in all cases the birth mother is the parent of the child.

With regard to the court process, the first step is for an application to the court to have the genetic male parent declared to be a parent. If this order is granted, then the court is asked to appoint that parent as a guardian of the child. Additional or ancillary orders are also sought to include an application that a passport can issue for the child without the consent of the child’s birth mother.

It is only after those orders are granted that an application for an Irish passport can be made.

The process to establish parentage is exactly the same for a single male parent through surrogacy. While I understand that it would be more unusual for a female couple to require to undergo surrogacy, such possibility does require consideration. Currently it is not possible for a same-sex female couple or a single female undergoing surrogacy to establish a legal relationship under Irish law with that child. This is the position irrespective of whether or not she is genetically related to the child. Happily, the assisted human reproduction Bill seeks to rectify this position for domestic surrogacy arrangements.

The assisted human reproduction Bill proposes to legislate only for domestic surrogacy where all parties are habitually resident in this jurisdiction. The committee should bear in mind that there are many Irish citizens in same-sex relationships living abroad who have had or will have children through surrogacy or through donor conception where they live. Even if the entire procedure is carried out in accordance with the law of that place it may not be possible for the non-genetic parents to have their parent-child relationship recognised under Irish law. This can have the knock-on effect of denying Irish citizenship to these children. Last week, a representative from the Department of Justice referenced to the committee a case that has been leapfrogged to the Supreme Court in which this very issue is before the court for determination.

It is most unfortunate that the Bill as drafted contains no provision for the retrospective establishment of parentage in the case of a child born through a pre-commencement surrogacy arrangement. The committee has been addressed by many parents through surrogacy, both male and female, who have no recognised legal relationship with their child born through surrogacy. The Children and Family Relationships Act contains a template for obtaining a retrospective declaration of parentage in the case of a donor-conceived child. A not dissimilar process could be established for surrogacy cases.

It is worth giving some thought to the importance of a genetic link in a surrogacy arrangement. Currently an opposite-sex married couple can go abroad for IVF treatment using donor gametes. A child conceived through such procedure and born here is the child of that couple, even though there is no genetic link. The Children and Family Relationships Act contains provision for the establishment of parentage in the case of a child born as a result of embryo donation. The assisted human reproduction Bill contains provision for the donation of embryos. In addition, adoption is a long-established and recognised method of obtaining parentage of a child where there is no genetic link.

Having been involved in this area for so long and watching various reports gather dust, I have wondered if I would ever see assisted human reproduction legislation in this country. I have watched the committee and I admire the enthusiasm with which all members have engaged. I wish them the best of luck in the preparation and finalisation of their report. It is not an enviable task. Medical science has enabled people who might never have been able to have children to become parents. Assisted human reproduction and surrogacy are here. The law must now catch up. I would be delighted to address any questions committee members might have today. In addition, I am happy to be at the disposal of the committee should it require any further input or assistance.