“How else are you going to identify a surrogate internationally?” he asked.
Having no legal framework for these arrangements is problematic and violates the rights of children, the Special Rapporteur said.
Surrogacy is unregulated in Irish law, while France, Germany, Italy, Spain, Portugal and Bulgaria all prohibit every form of surrogacy.
Highest standards of law
In preferring altruistic domestic surrogacy only, the domestic legal framework can be controlled to meet the highest standards of the laws governing the sale of children, Dr O’Mahony told the committee.
“[I recommended] that domestic surrogacy would be altruistic only … ensuring that, in our domestic framework, the laws which we can pass, which we do have control over, would meet the very highest standards around the laws governing sale of children and [this] was specifically in response to some of the output of the UN Special Rapporteur on sexual exploitation of children,” he said.
O’Mahony added that there was an opportunity to deal with both donor-assisted human reproduction and surrogacy in the upcoming bill, as comprehensively as possible, in order to establish some degree of consistency in approach.
He said that it was essential to regulate the area of surrogacy “for a long time to come”, and that this matter should be included in the bill.
The bill, as it currently stands, creates a discriminatory approach on the child’s right to an identity, he warned.
“The current position under Irish law governing donor-assisted human reproduction and surrogacy fails to adequately recognise children’s right to family life, and right to identity in the case of donor-assisted human reproduction [DAHR], and entirely ignores those rights in the case of surrogacy.
“This is contrary to both the best interests of children, and to the principle of non-discrimination in various ways,” he told the Oireachtas committee.
“There are two important points to make in response to claims that the blanket prohibition of surrogacy would be consistent with the best interests of children. First, this claim is directed towards the best interests of all children that would be born in future as a result of surrogacy arrangements rather than towards the best interests of individual children," he said.
"It is thus a misapplication of the best interests principle, which is intended to be applied to the real life circumstances of an individual child rather than to the hypothetical circumstances of unidentified children,” he said.
Sexual exploitation warning
O’Mahony’s report responds to concerns expressed by the UN Special Rapporteur, who has warned on the potential sexual exploitation of children.
Mr O’Mahony’s report recommends that, in paid-for global surrogacy arrangements, the intending parents must apply to the High Court for parentage and parental responsibility, as well as a grant of nationality and citizenship for the child, if certain criteria are met.
Heightened High Court supervision is necessary in these cases, due to additional risks, he said.
"Even if domestic surrogacy is regulated, there will always be families who will opt for international arrangements, whether due to the availability of surrogate mothers or other issues," he said in his opening statement.
The report says that 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 is necessary in paid-for surrogacy arrangements, to act as a safeguard against the “sale and trafficking of children”, the report says.
The present bill “only addresses domestic surrogacy arrangements, and makes no provision whatsoever for a legal framework for addressing international surrogacy arrangements”, he pointed out.
Those children born following surrogacy arrangements will be able to access ‘identifying information’ at 16, whereas children born following donor-assisted reproduction will have to wait until 18. These anomalies should be avoided, Mr O’Mahony said.
“If you deal with it in a single piece of legislation, then I think that lends itself more effectively to a comprehensive and consistent approach,” he said.
‘Blanket ban’
The blanket prohibition of commercial global surrogacy would be consistent with the best interests of future children, the report says.
Dr O’Mahony’s report draws on international children’s rights laws, he told the Oireachtas committee, drawing on the best UN and ECtHR material on the sale and sexual exploitation of children.
It also points out that Head 36(2) of the General Scheme of the Assisted Human Reproduction Bill 2017 prohibits the provision of legal advice to intending parents relating to international surrogacy arrangements.
“If this measure is aimed at creating a practical difficulty that limits the number of Irish parents who enter into international surrogacy arrangements, it is a potentially damaging way of achieving this aim,” the report says.
“Legal advice is an important way of providing intending parents with information before the child is conceived that can prevent problems arising after the child is born,” it continues.
A lack of legal advice means a greater chance that the arrangement will fail to comply with Irish law, it adds.
Legal advice is important, also, to inform the parents of the comparative benefits of domestic arrangements.
Incentivised
Since children could be conceived even when laws were not complied with, or the surrogate mother did not fully consent, domestic surrogacy should be incentivised as far as possible, the Special Rapporteur said.
There is an “inherent difficulty” in surrogacy, he added.
“We would prefer to incentivise people to engage in domestic surrogacy as far as possible, because we can regulate what happens in domestic surrogacy arrangements more effectively.
“We can have that advance approval, which I mentioned, which is difficult to have in the context of international surrogacy, because of the fact that we can’t grant or withhold approval for what happens in another jurisdiction,” he said.
Therefore, no recommendation was made on advance court authorisation of paid-for surrogacy in another country, he added.
“If we arrange our laws in such a way that domestic surrogacy is a more streamlined and preferable process for intending parents, to try and have as many of them as possible stay within the jurisdiction and avoid [global] surrogacy, then ideally, we can try to catch some of these issues before they happen,” he added.
The process should be made more attractive to intending parents in this jurisdiction, with a mechanism for pre-birth transfer of parentage, rather than travelling abroad where matters are less controlled.
This will be a more attractive model, compared with the post-birth transfer, and will incentivise more parents to stay under a higher level of domestic supervision, he said.
“We can only mitigate these things – we can never fully eliminate [them],” he said.
'At-home' procedures
On the issue of same-sex couples using ‘at-home’ procedures, rather than a fertility clinic to conceive, Dr O’Mahony said that there are two main DAHR gaps in the Children and Family Relationships Act 2015.
“One is in respect of what are known as ‘at-home’ procedures, where the couple engage in artificial insemination at home, rather than through a fertility clinic.
“The rationale for that is that, if [the couple] go through a clinic, then the child will have the right to identity better protected, because the clinic has record-keeping obligations, and the identity provisions of the bill then become operable.”
“However, my assessment was that creates a situation where the child whose identity isn’t protected also doesn’t have their family relationship protected,” Dr O’Mahony said.
“They end up with neither, and that’s a disproportionate way of seeking to achieve that aim of protecting identity,” he said.
His report therefore recommended an intermediate measure for at-home procedures, where identity was not protected, that there should be immediate qualification for guardianship after birth, to recognise the family relationship.
To incentivise protection of identity, those couples who file the relevant registry details on donor material will instead qualify for full parentage, and not simply guardianship, he added.
That would “nudge couples, and channel them towards a situation where children born through at-home procedures could have both their identity and their family relationships recognised”, Dr O’Mahony said.
However, as things stand, there are no proposals on that point in the 2022 bill, he warned.
Potential exploitation of women
The Special Rapporteur said that there was concern about potential exploitation of women engaged in commercial surrogacy but added that another view accepted women’s autonomy in making these decisions.
However, the question of financial reward for carrying a pregnancy did not fall within the remit of his report, he said.
Dr O’Mahony’s report points out that there is little consensus on surrogacy, with widely diverging approaches. International human-rights bodies and academic scholars have highlighted the risk that some forms of surrogacy may amount to sale of children.
However, even states that prohibit surrogacy must deal with the consequences of surrogacy arrangements, the report says.
High Court application
International surrogacy arrangements should involve an application to the High Court, which would be a more involved process than for domestic surrogacy, which could potentially be approved at District or Circuit Court level, Dr O’Mahony said.
This heightened level of supervision was needed, due to the additional risks involved in an international agreement, he said.
Either Irish lawyers could make the application to the Irish High Court, or lawyers from another jurisdiction could do so, or a collaborative effort whereby a couple had lawyers in each jurisdiction could be required.
It would be outside the jurisdiction of an Irish court to authorise, or refuse to authorise an arrangement in another country, he pointed out, which was why he had made no recommendation on advance proceedings.
There were advantages and disadvantages to hearing a case before or after a child arrived in the country, he pointed out.
If the law of the country where the surrogacy was taking place had not been complied with, then it was better to find that out before the child had left that jurisdiction, he warned.
“It can be quite difficult for the courts to actually refuse to recognise an arrangement, because it's almost too late at that point [when the child has arrived],” he said.
Earlier, the Oireachtas committee heard from Justice and Health officials that regularising paid-for commercial surrogacy presented several difficulties – not least the risk of Irish authorities being subject to undue pressure, and no real choice, but to approve set-ups that did not comply with legal safeguards or requirements.
Andrew Munro (head of policy in Department of Justice) said: “A lot of people got exploited by bad actors, where the egg that was purportedly supplied by a purported donor was not the [proper] egg. The child given to the intending parents had no genetic link.”
Retrospective recognition
Dr O’Mahony said that he was taken aback by the suggestion that international surrogacy did not belong in the Assisted Human Reproduction Bill.
“If it doesn't belong here, then where does it belong?” he asked, adding that he feared a very long wait before any separate bill dealing with international surrogacy made it back on the agenda.
The fact that children born through paid-for surrogacy are legal strangers to one or both parents means that a comprehensive single piece of legislation that addresses everything to do with surrogacy, as well as donor-assisted human reproduction, is the appropriate way forward, Dr O’Mahony said.
No other country has yet put in place a specific tailored piece of legislation around international surrogacy and has, instead, adapted family law to deal with it, through adoption processes, he added.
However, adoption may be unsuitable for some people due to health reasons, he said.
Protecting the right to identity
The child’s right to identity should be protected through non-anonymous donation, and record-keeping on the donor identity, he continued. A child has a right to identity information “in line with evolving capacities”, he said.
Relying on general guardianship laws wouldn't give that protection for the child's right to identity, he argued.
Likewise, ensuring that the surrogate had genuinely given free and informed consent, in line with the laws governing the sale and trafficking of children, may not be guaranteed using general guardianship laws, he warned.
While parentage rights are mutually recognised in EU countries, the issue of international surrogacy was a much bigger picture, he said.
Difficult matters
Most Irish couples who travel abroad for international surrogacy go to non-EU member states; therefore, EU law is not an appropriate vehicle for dealing with such arrangements, he pointed out.
That these matters are difficult is not a reason for not tackling them, Dr O’Mahony argued.
While it would have been easier to ignore international surrogacy because no other country had yet designed a legal framework for it, the Special Rapporteur said that he had decided not to take that route.
“To my mind, just because it's difficult and challenging and complicated simply is not a reason to avoid doing it,” he said.