Professor Conor O'Mahony:

Irish law has a long way to go to vindicate fully the rights of children born as a result of donor-assisted human reproduction or surrogacy. At present, we have laws allowing for parentage to be allocated in some cases involving donor eggs or donor sperm, but not all families benefit from this legislation. Meanwhile, surrogacy is entirely unregulated in Irish law. The result is that children are born and raised in families in which one parent is treated as a legal stranger to the child. This fails to recognise adequately the children's right to family life and their right to identity in some cases of donor-assisted human reproduction and entirely ignores those rights in the case of surrogacy. This is contrary to both the best interests of children and the principle of non-discrimination. In 2020, the Government asked me, as special rapporteur for child protection, to examine the implications of donor-assisted human reproduction and surrogacy for the rights and best interests of children. My report was published last April and my input today is based on that report.

The question of whether to regulate or prohibit surrogacy is a subject on which there are strong and legitimately held opinions and on which there is little international consensus. Nonetheless, from the point of view of children's rights, certain principles are beginning to become clear. The unavoidable reality is that children will continue to be born following international surrogacy arrangements, irrespective of what Irish law provides, and to be cared for by parents who may have no legal connection with those children. In the face of this reality, the European Court of Human Rights has held that states that are party to the European Convention on Human Rights must provide a pathway to legal recognition of family relationships arising from international surrogacy arrangements. Ireland is bound by this obligation.

My report recommends that the Oireachtas should enact comprehensive legislation regulating surrogacy at the earliest opportunity. This legislation should incentivise reliance on domestic surrogacy arrangements by adopting a more streamlined and less burdensome framework for domestic rather than international arrangements. That said, even if domestic surrogacy is regulated there will always be families who will opt for international arrangements, whether due to the availability of surrogates or other issues. It is unsustainable to allow these families to remain in the legal twilight zone they currently inhabit. It is therefore imperative that any legislation enacted in this area also provides a clear pathway to recognition of relationships arising from international surrogacy.

My report makes a series of recommendations which are aimed at harmonising Irish law with children’s rights principles deriving from our international legal obligations. These recommendations include closing gaps in existing laws governing parentage in donor-assisted human reproduction procedures; for domestic surrogacy, that provision be made for a court application prior to the conception of the child that would combine advance authorisation of the arrangement with a pre-birth transfer of parentage; for international surrogacy, the legislation should provide for intending parents to apply to the High Court for parentage and parental responsibility, as well as for a grant of nationality and citizenship to the child, subject to satisfying a range of prescribed criteria, with such applications to be made before the child is brought into the jurisdiction; that retrospective declarations of parentage be available in respect of children born through surrogacy arrangements which took place before the legislation comes into effect; and that the legislation governing donor-assisted human reproduction and surrogacy would ensure that the right to identity be protected for all children born through such procedures and can be exercised by children while they are still children, with identifying information being made available to parents at any point after the child's birth and directly to children from the age of 12 years onwards.

All these points were addressed in much more detail in my report and I am happy to discuss all this with the members throughout today's proceedings.