Professor Conor O'Mahony:

I thank members for making time to speak again with me this morning. I apologise for being unable to attend in person on this occasion. My submission will focus on the issues paper provided by the Departments of Health; Justice; and Children, Equality, Disability, Integration and Youth to the committee in advance of its hearing on 7 April that raises a number of concerns regarding recommendations made in my report of December 2020 that examined children's rights and best interests in the context of donor-assisted human reproduction and surrogacy in Irish law.

It is somewhat regrettable that the three Departments never took the opportunity to contact me following the submission of my report to raise these concerns and to afford an opportunity for them to be discussed further. It was also regrettable that I did not have sight of the issues paper prior to the hearing on 7 April because this made it very difficult for me to respond properly to these concerns during my own appearance at this hearing. For this reason, I am grateful to the committee for providing me with the issues paper and giving me an opportunity to respond to it today.

In brief, the main points raised in the issues paper regarding the recommendations in my report were that they would leave Irish courts with no real choice as to whether to recognise international surrogacy arrangements, would leave foreign surrogate mothers with fewer protections than Irish surrogate mothers, would give rise to practical difficulties in arranging court hearings before children born abroad are brought to Ireland, would be inconsistent with existing legislation relating to citizenship and passports and would give rise to constitutional concerns with respect to the retrospective reassignment of parentage from birth parents to intending parents.

Having carefully considered the issues paper and done further analysis on it, it is my considered view that these concerns are based on an incomplete understanding of the recommendations and the associated legal landscape and are beset by logical inconsistencies. On the first two points, the recommendations in my report provide an outline for a legislative framework for the recognition of international surrogacy arrangements where and only when they meet minimum standards, including in respect of the protection of the surrogate mother, and that an Irish court would have to assess whether or not those standards were met and would have a clear basis for refusing to recognise those arrangements if these standards are not met. The Government’s current proposal of leaving international surrogacy entirely unregulated by excluding it completely from the assisted human reproduction Bill does neither of these things. It leaves foreign surrogate mothers with no protection whatsoever under Irish law and creates a situation where applications by intending parents for parentage and guardianship will invariably be approved with no opportunity to consider any of the legal or ethical issues arising in respect of the surrogacy arrangement. As such, the Government’s proposed approach ignores the very issues about which concerns are raised in the issues paper. It allows for a situation whereby Irish couples can bring children here in circumstances where surrogate mothers were seriously exploited or did not properly consent and allows for the parents to be recognised eventually as parents or guardians without any scrutiny of the treatment of the surrogate mother.

For this reason, the only way to apply protection and safeguards in Ireland to the recognition of international surrogacy arrangements is through bespoke legislation, as recommended in my report.

The claims made in the issues paper regarding practical difficulties in hearing applications for recognition of international surrogacy before the child is brought to the jurisdiction are very much overstated. Remote court hearings are already an integral feature of our courts system following the Covid pandemic. Short notice is not a problem of any real significance. It is possible in most cases to predict the date of birth of a baby pretty accurately to within a couple of weeks. The hearings can be scheduled in advance. In the event the baby is very premature, the baby will in that circumstance have to stay in hospital for some time anyway and will be unable to travel. Therefore, any question of time pressure to allow the child to be brought to Ireland does not arise in that way.

The rationale in my report for recommending that the application is heard before the child arrives in the jurisdiction is that it is the most effective way of giving an Irish court a choice of refusing to recognise the international surrogacy arrangement, which is one of the concerns the issues paper expresses. This may be because the surrogate mother has not genuinely consented, local laws have not been observed or the child's right to identity has not been protected. It would leave these issues to be resolved in the country where they arose and avoid the cross-jurisdictional challenges that would arise after the child has been brought to Ireland. These would make it more likely that an Irish court would gloss over problems with the surrogacy arrangement on the basis that the child is now living here and has established a family relationship with the intending parents. Having said this, it is important to stress that if it is felt it is more practical to hear applications for recognition of international surrogacy arrangements after the child has been brought to Ireland there is no reason in principle this could not occur. This is not a basis or adequate justification for leaving the recognition of international surrogacy arrangements entirely unregulated. It would simply be a reason to hold the application and court hearing after the child arrives instead.

Questions of inconsistency with existing legislation governing citizenship and passports ignore the fact that the legislation is enacted by the Oireachtas and open to modification by it. It is entirely within the gift of the Oireachtas to adapt citizenship legislation to the unique requirements of international surrogacy. For reasons already alluded to in the earlier session, it is in the best interests of the children involved to do just this.

The issues paper makes a claim that constitutional issues would arise if legislation allowed for retrospective reassignment of parentage from birth parents to intending parents. This relies very much on a Supreme Court decision from 2009 in McD v.L. This position is a flawed interpretation of the constitutional case law. It relies on a Supreme Court decision that was not concerned with the issue of surrogacy or the issue of retrospective assignment of parentage. The decision did not establish constitutional rights of sperm donors. In fact, it found they did not have constitutional rights. Contrary to what the issues paper claims, it did not draw any distinction between known donors and unknown donors since it was only concerned with a known donor. It simply did not consider the position of unknown donors.

For all these reasons, to claim that McD v.L establishes that it would be unconstitutional to retrospectively remove parentage from a known sperm donor, and that by the same token it would be unconstitutional to retrospectively remove parentage from a surrogate mother, is a distortion of the judgment. In the absence of any legislation governing assisted human reproduction at the time of the judgment, the entitlement of the father to parentage flowed solely from his genetic relationship to the child and existing legislation governing declarations of parentage. If an unknown donor were to have become aware of the identity of his child and then applied to a court for a declaration of parentage, the unknown donor would have been entitled to this declaration in exactly the same way as the known donor. There is no distinction between the two. Nonetheless, as we have heard in previous hearings, the Children and Family Relationships Act 2015 did legislate to allow for the retrospective removal of parentage from unknown sperm donors. Therefore, it is quite clear that McD v.L does not establish any general principle to the effect that the Constitution is an impediment to legislating for retrospective removal of parentage.

The relevant section of the issues paper, having relied entirely on McD v.L, ignores the more recent and much more relevant decision of the Supreme Court in MR v.An tÁrd-Chláraitheoir in 2014. This is the only Supreme Court case we have that directly considers the question of surrogacy. The court stressed that the regulation of surrogacy is quintessentially a matter for the Oireachtas and called on the Oireachtas to enact legislation in this area. This clearly establishes that the Oireachtas has a very wide latitude in deciding on the appropriate approach in legislating for surrogacy and that the courts would be very unlikely to find any law enacted in this area is unconstitutional. While surrogate mothers, unlike sperm donors, would have constitutional rights in respect of the child, those constitutional rights, like any constitutional right, would be open to legislative intervention and limitation aimed at securing the best interests of the child. We already see examples of this in adoption law, for example section 31 of the Adoption Act 2010.

For all of these reasons it is my considered view that the issues paper fails to provide convincing reasons in support of rejecting the recommendations made in my 2020 report. The points made in respect of international surrogacy and retrospective recognition of surrogacy arrangements are internally inconsistent and based on a flawed understanding of the constitutional case law. Moreover, no rationale is provided for the rejection of other recommendations made in my report, including on the right to identity which was discussed in this morning's session. It remains my firm view that the Government’s proposals will result in legislation which is contrary to Ireland’s commitments with respect to the child's right to family life, the right to identity, the best interests principle and the principle of non-discrimination. I am very happy to discuss all of these points further with the committee.