Professor Conor O'Mahony:

It is a tricky point. I will say a little more about the Supreme Court decision in McD v. L. That was a case in which a lesbian couple had a child using a sperm donor who was a friend of theirs. When the case came to court, it concerned a dispute which had subsequently arisen. The original agreement had been that the parties would have an arrangement whereby the sperm donor would be known as a favourite uncle but would not be the child's father. It was a private arrangement they had come to, but there was no legal framework for it at the time. A dispute subsequently arose. The father applied for guardianship and access to the child and the case ultimately came to the Supreme Court. The Supreme Court made a number of findings in the case, one of which was that it made it very clear that it reaffirmed the long-standing position that unmarried fathers in Irish law have no constitutional rights. They have a number of statutory entitlements to make applications to the court to be declared a parent if there is DNA evidence, to be appointed a guardian and so forth, but the Constitution provides no rights to unmarried fathers at all. That was one of the core findings of the case. Second, notwithstanding that, the court said it is normally in the child's best interests to have the opportunity of knowing the parent and, therefore, the case was remitted back to the High Court, and ultimately a decision was made in which access was granted.

What we see from that case in the issues paper is that, following McD v. L, in the Children and Family Relationships Act 2015 provision was made for retrospective allocation of parentage in cases of donor-assisted human reproduction where people had a child using a sperm donor or an egg donor before the 2015 Act came into effect. That retrospective reassignment of parentage was allowed in cases where the donor was unknown to the parties, but was not allowed in cases where the donor was known. Until I saw the issues paper, my understanding of the rationale for that was that it was based on a sense that where there are known donors there is more scope for disputes between the parties and that, rather than encouraging those disputes or allowing them to bubble up to the surface, it would be better to leave that outside of the framework of the parentage allocation, whereas if the donor was unknown, the scope for that dispute would not arise in the same way and, therefore, one could proceed and allocate parentage retrospectively. The issues paper clarifies that this was not the rationale in the 2015 Act. The rationale was instead an understanding that the known donor had a constitutional right which could not be abridged by the Bill whereas the unknown donor did not have a constitutional right. I cannot quite understand how McDv. L was interpreted in that way seeing that the Supreme Court found that the sperm donor has no constitutional right at all, irrespective of whether he is known or unknown, so that distinction cannot be drawn from the judgment. There was no consideration of unknown donors in the judgment.

Second, on the question of the entitlement to apply for parentage, it applies equally to known donors or unknown donors. As the Senator said, if an unknown donor were to become known, the donor could make an application under the existing legislation in the Status of Children Act 1987 to get a declaration of parentage in exactly the same way as a known donor would, yet the 2015 Act legislated to allow for retrospective reassignment of parentage away from that father. From that point of view, McD v. L simply does not say what the issues paper says it says in respect of the constitutional rights which are enjoyed in this context by sperm donors.

Regarding the surrogate mother, under existing law the surrogate mother would like any other mother be recognised as having constitutional rights in respect of a child born to her. That arises largely because she is currently recognised as the child's mother. Of course, as we saw in the MR v. An t-Árd-Chláraitheoir case, it is open to the Oireachtas to amend the law to remove that presumption that the surrogate mother would be recognised as the child's mother. The Oireachtas is very clear in saying that the decision on how to handle that issue is a decision for the Oireachtas and not for the courts. I reiterate the point I made earlier that we have other examples of law. Section 31 of the Adoption Act 2010 allows for adoption orders to be processed without the consent of a birth mother if it is deemed to be in the best interests of the child to do so. That would also have the effect of transferring parentage away from the birth mother and to the adoptive parents in that case.

To my mind, it is very clear that the Constitution imposes no obstacle to laws that would allow for retrospective reassignment of parentage in surrogacy cases. From a children's rights perspective for all the reasons we have heard in all of the hearings to date, we know a cohort of children are living in this disadvantaged legal world who have already been born through surrogacy arrangements and who will be left behind if the Bill proceeds in its current state. For all of those reasons I strongly recommend the legislation should include provision for retrospective allocation of parentage. I reiterate my analysis that there is no constitutional impediment to do so.