The forthcoming Health (Assisted Human Reproduction) Bill will cover:
- Sperm or egg and embryo donation for assisted human reproduction (AHR) and research,
- Domestic surrogacy,
- Pre-implantation genetic diagnosis (PGD) of embryos,
- Posthumous assisted reproduction,
- Embryo and stem cell research.
The bill also provides for the establishment of an independent regulatory authority for AHR.
The draft legislation will set out specific provisions under which surrogacy will be permitted in Ireland, expected to be confined to non-commercial "domestic" arrangements.
Last month, Roderic O’Gorman (Minister for Children, Equality, Disability, Integration and Youth) told the Dáil that “bespoke legal arrangements” may be necessary for children born through paid-for commercial surrogacy outside of the jurisdiction.
Welfare
Justice minister Helen McEntee said this morning (21 January) that the rights, interests and welfare of all those involved in international surrogacy arrangements – children born through surrogacy, surrogate mothers, parents and intending parents – must be considered.
The UN Special Rapporteur for Children has warned of the potential for surrogacy to violate laws prohibiting the sale of children, and has emphasised the need for a high level of legal safeguards to mitigate this risk.
The European Court of Human Rights (ECtHR) has also said that the best interests of the child are “paramount” in surrogacy cases, rather than simply “a primary consideration”.
During the pandemic, 35 children born through surrogacy in Ukraine were kept in hotel rooms for several months, as they could not be collected by “commissioning” parents. Some of the babies were up to two months old.
Thailand and India both banned commercial surrogacy for foreigners after several babies born with compromised health were abandoned by "commissioning" parents.
As a result, Ukraine is now the favoured paid-for surrogacy destination.
Right to know genetic origins
In December 2020, Special Rapporteur on Child Protection Professor Conor O’Mahony advised the Government that children born through donor-assisted reproduction or surrogacy had a right to know their genetic origins, from the age of 12.
In 2018, child-law experts warned that legislating for “legal fictions” on birth certs, by sidestepping the truth of a child’s origins through donated gametes in commercial surrogacy, would lead to human misery on a grand scale.
Children’s Ombudsman Niall Muldoon told the Gazette at that time that every child born through assisted reproduction should have full, accurate information on “the reality of their lineage and birth”, including the identity of any gamete donors or surrogates.
In a 2014 Oireachtas submission, Muldoon also told the Dáil that the right to knowledge of one’s identity went beyond simple curiosity, and “springs from a need that is a basic aspect of human dignity”.
He warned legislators against overlooking the identity rights of those born through assisted human reproduction, particularly given the fraught history of adopted people’s identity rights in this country.
Natural parents
The UN Convention on the Rights of the Child is clear on the right of every child to its genetic identity, and to know and be cared for by its natural parents.
The Irish Human Rights and Equality Commission (IHREC) likewise has pointed out that the right to information about one’s identity is a fundamental human right.
Under Irish law, the biological or genetic father of a child born the through surrogacy may apply for a declaration of parentage in respect of the child under Section 35 of the Status of Children Act 1987.
If the declaration of parentage is granted, the father may apply for guardianship under Section 6A of the Guardianship of Infants Act 1964.
The intending mother of a child born through paid-for surrogacy, who is not the birth mother, is not entitled to apply for a declaration of parentage under the 1987 act, even if she provided the egg used in the commercial-surrogacy arrangement.
She can apply under section 6C of the 1964 act to be appointed the child’s guardian if she is married to, or in a civil partnership with the child’s parent, or has cohabitated with the child’s parent for over three years.
This position also applies for a male intending parent who is not the child’s genetic father.
Dr O' Mahony’s report points out that signatories to the European Convention on Human Rights must provide a pathway to legal recognition of family relationships created through paid-for surrogacy.
“Legislation governing domestic surrogacy arrangements should allow for altruistic surrogacy only, with detailed provisions governing the payment of reasonable expenses,” that report says.
Evolving capacities
“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,” it continues.
The High Court should hear applications for parental rights to be granted in the case of paid-for surrogacy arrangements, prior to the child being brought into the jurisdiction, it advises.
The report also says that a genetic link should be included in the conditions governing recognition of international surrogacy arrangements, to act as a safeguard against the sale and trafficking of children.
Sale of children
Domestic surrogacy is now banned in France, Germany and Italy, Dr O’Mahony points out, and international human rights bodies and academics have highlighted the risk that some forms of surrogacy may amount to the sale of children.
However, the failure of the Oireachtas to legislate in this area to date may mean it can learn from a greater body of experience from other jurisdictions, and a greater body of academic research and literature, Dr Mahony’s report says.
The output of the UN Special Rapporteur and the ECtHR since 2018 has clarified the nature of international human-rights law obligations in assisted human reproduction and surrogacy, Dr O’Mahony added.
“It is incumbent on the Oireachtas to maximise the opportunity to build on these recent developments, and to enact legislation that meets the highest international standards, and addresses the rights and interests of all parties involved,” the report says.
Commodification
UN Special Rapporteur on the sale of children Maud de Boer-Buquicchio said in 2019: "The starting point for me is there is no right to a child under international law — a child is not a good or a service that the state can guarantee or provide.
"In the context of commercial surrogacy — that implies the commodification of children — and when the commercial value determines the whole process, there are serious concerns under the Optional Protocol to the Convention of the Rights of the Child and the Convention itself which prohibits sale of children."