Ms Tanya Ward:

I thank the Chairman for the invitation to address the committee. As members will know, the Children's Rights Alliance is an umbrella organisation with more than 140 members. It is our goal for Ireland to be one of the best places in the world to be a child. We do that by promoting the UN Convention on the Rights of the Child. I say that specifically because this is very relevant to the discussion we are having when it comes to surrogacy. I thank the committee for its work in this area because this has been a very difficult area for many children and families in Ireland. There are many different factors and considerations. From our perspective, however, this needs to be looked at in the best interests and from the perspective of the child. That is the way to resolve these issues.

The committee has already seen, through the different inputs it has received, the issues that are happening to children who have been born through surrogacy. Some of the bigger issues are statelessness, lack of protection of identity and not having a legal relationship with the people who care for and look after the children. Obviously, there is legislation before the Houses at the moment, such as the Health (Assisted Human Reproduction) Bill 2022, which provides a basis now to regulate domestic surrogacy.

One thing we in the Children's Rights Alliance think would be very important, and members will see this in our opening statement, is a focus on the best interests of the child and developing a sophisticated approach in that regard. Obviously, children have a right to ensure that the best interests of the child are a primary consideration in all actions concerning the child. The Constitution actually goes further when it comes to access, custody and parentage, as does the convention, which states that "the best interests of the child shall be the paramount consideration." They are the supreme consideration, essentially.

We believe there is a need to amend the health legislation that is before the Houses at the moment with regard to the best interests. There are a number of ways to address this. The minimal approach includes the best interests as an interpretive principle. It would say that all matters concerning the child need to consider the best interests. The challenge with that approach, if we look at the way that has been interpreted in Irish law, is that there are examples of both minimal compliance and of gold standard approach, essentially. Minimal compliance is where there is a clear statement that the best interests of the child should be considered. We see that in relation to, let us say, the Child and Family Agency Act 2013, which has that as a principle. What happens in practice, however, is that it really goes down to each individual decision maker and how he or she interprets it. Generally, the research will show that a decision maker can do it very paternalistically, and it is essentially left to the lawyers and the courts to work out whether and in what circumstances it should be expanded upon. The gold standard approach, which is what the UN Convention on the Rights of the Child would recommend, and we have an example of that in the Children and Family Relationships Act 2015, is where one actually provides a test. Therefore, when interpreting what the best interests of the principle are, the judge or decision maker has seven or eight different things to consider. We think this is something that needs to happen to this legislation.

Members will see in our submission that the Verona principles are relied upon to expand upon what that would look like when it comes to the surrogate consideration. We would say, at a minimum, that is something that needs to be added to the legislation. I think the aspirations of people in the country would be to go for the gold standard approach when it comes to surrogacy arrangements because it is fraught with many different challenges.

The other issue brings us down to the right to identity. The UN special rapporteur has been before the committee. I am delighted we had the opportunity to appear in the same session as her. The UNCRC is very clear about the children’s right to know and to be cared for by their parents insofar as possible. The term “parents” includes birth parents, genetic parents and those who care for a child for significant periods. It also provides that a child has a right to be registered immediately after birth and has the right to acquire a nationality, and places a specific obligation on the state to ensure that rights are implemented, in particular, where a child would otherwise be stateless. Preserving the identity of a child, their nationality and their family relations are, therefore, all key.

It is welcome that in the draft health Bill that is before the Houses there is the creation of a surrogacy register in which that information is to be provided. The challenge is for children who were born through international surrogacy is that the same form of protection would not be provided for them. That is an omission that would amount to a form of discrimination if children were to be born outside of the State and there was not an attempt to preserve, protect or recognise their identity. Of course, there is a precedent for doing this. The Children and Family Relationships Act 2015 includes a provision for the donor-conceived register, but it also provides for children who had been conceived outside of the State, or where an IVF clinic had been involved outside the State, the information could be added to the donor conceived register as well. There are, therefore, legal solutions that we can find to try to address this as an issue.

This brings me to the final, broader point about the need to legislate in this area. This is coming through from the key bodies that are concerned about the welfare of children. These include the UN special rapporteur, the Ombudsman for Children's Office and the Special Rapporteur for Child Protection, Professor Conor O’Mahony. We would recommend that as well, as would the UN committee on the rights of the child. Notwithstanding the rights and wrongs of surrogacy, we can see that the special rapporteur has outlined clear procedures to protect against the sale of children, which acts as a good guide, as do the Verona principles. They should be incorporate as far as possible into the legislation. That would give us the best protection for children.

If we do not legislate in this area, we will continue to see situations where children are conceived in potentially very exploitative circumstances around the world. They will arrive back and again be faced with the same problems. For instance, their identity has not been protected, or there has been exploitation of their commissioning parents. They may find out that they are not even genetically connected to the commissioning parents. That is probably one of the most serious things that has happened, and the committee members will have heard about it at the committee. We believe there is an onus to provide a legal framework to resolve these issues. The way the State has approached it is to try to discourage it by having a legal framework and to make it difficult. There are other ways of dealing with that situation. Policy and other approaches can be used to discourage people who are desperate to become parents from going to countries or using services where there is likely to exploitation of women, where there is poor protection of children, where the sale of children is prevalent and where their identities are not protected.