Irish law currently makes provision for parentage to be allocated to intending parents of children born following DAHR procedures, subject to exceptions relating to non-clinical procedures and some children born before the relevant legislation came into effect. Surrogacy is entirely unregulated in Irish law. The impact of this position on children born following surrogacy arrangements has been repeatedly highlighted, including by the Supreme Court, which has called on the Oireachtas to fill this legislative vacuum.
The question of whether to regulate or prohibit surrogacy is a subject of considerable debate, with strong and legitimately held opinions on either side. It is also an issue on which there is little international consensus, with widely diverging approaches taken in different countries. Nonetheless, from a children’s rights perspective, certain principles are beginning to crystallise. The unavoidable reality is that children will continue to be born following international surrogacy arrangements and to be cared for by intending parents who may have no legal connection with the children. In the face of this reality, the European Court of Human Rights has held that States Parties to the European Convention on Human Rights must provide a pathway to legal recognition of these family relationships. The UN Special Rapporteur on the sale and sexual exploitation of children has echoed this point, while expressing concerns about the potential for surrogacy to violate laws prohibiting the sale of children and emphasising the need for a high level of legal safeguards to mitigate this risk.
This report analyses the law governing parentage and the right to identity in DAHR and surrogacy from the perspective of children’s rights and best interests (see guiding principles in section 2). It examines allocation of parentage and access to information about genetic origins in future DAHR procedures and surrogacy arrangements taking place in Ireland (sections 3 and 4), as well as separate considerations arising in respect of international surrogacy arrangements (section 5). It proceeds to examine retrospective recognition of DAHR procedures and surrogacy arrangements which occurred before the enactment of the relevant laws (section 6). Finally, it considers whether legal recognition should be granted to surrogacy arrangements where there is no genetic link between the child and either intending parent (section 7).
The report recommends that the Oireachtas should amend the Children and Family Relationships Act 2015 to address a number of anomalies arising in respect of the recognition of family relationships in DAHR procedures, and enact comprehensive legislation regulating surrogacy at the earliest opportunity. Surrogacy legislation should make provision for the recognition of both domestic and international surrogacy arrangements, and should incentivise reliance on domestic arrangements by adopting a more streamlined and less burdensome framework than for international arrangements. Provision should be made for a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation.
Legislation governing domestic surrogacy arrangements should allow for altruistic surrogacy only, with detailed provisions governing the payment of reasonable expenses. Provision should be made for a court application prior to the conception of the child that would combine advance authorisation of the arrangement and a pre-birth parental order. Provision should also be made for resolving any disputes that may arise between the surrogate and the intending parents following the birth of the child.
Legislation governing DAHR and surrogacy should ensure that the right to identity can be exercised by children while they are still children, in line with their evolving capacities. Non-identifying information should be made available at any point to children or to their parents. Identifying information should be made available on request to parents at any point after the child’s birth, and made available on request directly to the child from the age of 12 years. Provision should be made for parents to receive counselling advising them on the benefits of early disclosure of the child’s genetic origins.
In relation to international surrogacy arrangements, legislation should make provision for the High Court, upon the application of the intending parents, to grant parentage and parental responsibility to the intending parents, and nationality and citizenship to the child, where the Court has satisfied itself (upon provision of suitable evidence) of a range of prescribed criteria. Legislation should stipulate that such applications should be made before the child is brought into the jurisdiction.
The existing laws preventing retrospective declarations of parentage from being granted to intending parents who used a known donor in DAHR procedures should be repealed. Retrospective declarations of parentage in respect of children born through surrogacy arrangements should also be provided for where a court has satisfied itself (upon provision of suitable evidence) of a range of prescribed criteria.
There should be no requirement that domestic surrogacy arrangements involve a genetic link between the child and at least one intending parent. However, such a requirement should be included in the conditions governing recognition of international surrogacy arrangements to act as a safeguard against the sale and trafficking of children.