Dr. Niall Muldoon:

I thank the committee for the invitation to speak to it on the matter of international surrogacy, including the right of children born through surrogacy to preserve their identities. Our office submitted our full observations on Monday. Therefore, I will only hit on a number of important points in this statement.

As committee members are aware, the Ombudsman for Children's Office, OCO, is an independent statutory body that was established in 2004 under the Ombudsman for Children Act 2002. Under that Act, the OCO has two core statutory functions: to promote the rights and welfare of children up to 18 years of age; and to examine and investigate complaints made by or on behalf of children about the administrative actions of public bodies, schools and voluntary hospitals that have, or may have, adversely affected a child.

Our office has previously expressed the view, and continues to hold the view, that provision should be made in law for the rights of all children in Ireland born through surrogacy. The Health (Assisted Human Reproduction) Bill 2022 presents a significant opportunity to provide clarity for children who will be, and have been, born through domestic and international surrogacy. However, as outlined in our office's observations, we are of the view that the Bill, as it stands, does not have sufficient regard to children’s rights and that a number of issues need to be considered further to ensure the Bill will be child centred and rights based.

Ireland has an obligation under international law to respect, protect and fulfil the rights set out in the UN Convention on the Rights of the Child, UNCRC, for all children in Ireland born through domestic or international surrogacy. In this regard, we are concerned about the absence of provision in the Bill for children born through international surrogacy and the Bill’s silence as regards children already born through a domestic or international surrogacy arrangement. The OCO acknowledges concerns that a double standard may arise if parental orders are granted in respect of a child born through commercial surrogacy abroad. The objective of maintaining the integrity of a domestic prohibition of commercial surrogacy is understandable. However, categorically excluding the possibility of recognising the relationship between a child born through international surrogacy and his or her intending parents will have immediate and grave consequences for the child and is contrary to the UNCRC and the European Convention on Human Rights. We recommend, therefore, that the Bill include provision both for children born through international surrogacy arrangements and for retrospective assignment of parentage and parental responsibility in both domestic and international surrogacy arrangements.

Article 3 of the UN Convention on the Rights of the Child requires that the best interests of the child be treated as a primary consideration in all decisions relating to a surrogacy arrangement that affects the child. Although this principle is partially reflected in some of the Part 7 provisions of the Bill concerning surrogacy, we believe these provisions can be strengthened to align the Bill fully with the principle set out in the UNCRC and the standard set out in Article 42A of the Constitution. Therefore, we recommend that the Bill explicitly provide that all decisions made in respect of a surrogacy arrangement that affect the child must have regard to the best interests of the child as the paramount consideration.

We welcome the fact the Bill provides for the recording of information relating to the origins of children born through domestic surrogacy on a national surrogacy register and that it allows children aged 16 and 17 to apply to obtain such information. However, we believe further attention needs to be given to the provisions relating to children’s access to information, with a view to aligning the Bill fully with children’s right to preserve their identity under Article 8 of the UNCRC and with an approach that respects the evolving capacities of children. In this regard, we encourage consideration to be given to amending the Bill to provide that information on the origins of children born through international surrogacy and children already born through surrogacy must be recorded, and to provide that applications to obtain identifying and non-identifying information on origins may be made by a child or on behalf of a child by the child’s parents or guardian, without limitations as to the child’s age.

I thank the committee for the invitation. My colleagues and I will be very happy to any questions.