Dr. Lydia Bracken:

I thank the committee for the opportunity to share my views on the rights of the child in respect of domestic and international surrogacy. Based on the research that I have conducted as a legal academic, it is my view that the absence of legislation to specifically regulate surrogacy in Ireland is contrary to the best interests of children who are born through this process. The central premise of my statement is that surrogacy must be subject to specific legal regulation in order to comply with the best interests principle and that law, policy and practice in the area must be shaped by children’s rights and research on children’s experiences. Among other things, this regulation must ensure that the intending parents who care for the child from birth can both be recognised as legal parents; that the child’s right to identity is safeguarded; and that the child does not experience discrimination due to the circumstances of the child's conception.

The current situation is that without regulation, children born through surrogacy are disadvantaged in a range of areas as they do not have a legal relationship with one of their parents, either the intending mother or intending father. To address these issues, there is a need to legislate for future surrogacy arrangements, but the law must also provide a mechanism to recognise the intended legal parentage of children who have already been born through surrogacy. This could be achieved in a manner similar to the provisions of our existing law that allow for the recognition of parentage in cases of donor-assisted human reproduction that occurred prior to commencement of Parts 2 and 3 of the Children and Family Relationships Act 2015.

As it is currently drafted, the general scheme of the assisted human reproduction Bill 2017 proposes to prohibit international surrogacy and to criminalise intending parents who engage in it. It is my view that prohibiting international surrogacy will not protect children’s rights and criminalising intending parents would only exacerbate the issues. The difficulties that arise as a result of prohibition are evident in the jurisprudence of the European Court of Human Rights, which has heard a number of cases on this point. The case law of the court and an advisory opinion issued in 2019 indicate that legal recognition of certain parent-child relationships must be possible following surrogacy, even in countries that prohibit the practice, in order to protect the child's rights. Of course, assessment of the best interests of the child must take place on an individualised basis, taking into account all relevant factors.

However, ignoring the reality of international surrogacy by not legislating for it leaves the door open to children’s rights violations.

While today’s discussion focuses on children’s rights in surrogacy, it is also important to note that Ireland’s existing legislation on donor-assisted human reproduction, that is, the Children and Family Relationships Act 2015, falls short of children’s rights standards in a number of areas. For example, a number of pathways to parentage are omitted from the legislation, raising issues for the child’s right to family life, and there are also issues with the process through which the right to identity can be vindicated for the child. The assisted human reproduction Bill provides an opportunity to enact inclusive and comprehensive legislation to address the current gaps in Irish law and so I urge the committee to consider the issues in this broader context to ensure consistency across all assisted human reproduction legislation. I thank the committee.