New laws needed on surrogacy, Special Rapporteur on Child Protection says

Professor Conor O'Mahony wrote his report on the children’s rights implications of donor assisted human reproduction and surrogacy for government, recommending sweeping changes.

The government should draft new and comprehensive laws on surrogacy, including to allow for altruistic surrogacy only at domestic level and greater legal oversight on all surrogacy arrangments, according to a new report by the Special Rapporteur on Child Protection.

Prof Conor O'Mahony wrote his report on the children’s rights implications of donor assisted human reproduction and surrogacy for government, recommending sweeping changes to a system which he said was "entirely unregulated in Irish law" and where there is "little international consensus, with widely diverging approaches taken in different countries".

The report, titled A Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law, is likely to be carefully considered as part of the next steps in the enactment of the Assisted Human Reproduction Bill.

Prof O'Mahony said of the current situation: "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."

Addressing 'anomalies'

To address this he recommends that the Oireachtas should amend the Children and Family Relationships Act 2015 to tackle "anomalies" in respect of the recognition of family relationships in DAHR procedures, and that the government enact comprehensive legislation regulating surrogacy "at the earliest opportunity".

Professor Conor O'Mahony, UCC.

"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," he said.

"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."

The report also calls for greater rights for the child, including earlier access to information.

"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," Prof O'Mahony writes in the report." 

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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."

International surrogacy

As for international surrogacy arrangements, the report says 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 is satisfied that criteria has been met. 

Such applications should be made before the child is brought into the jurisdiction and existing laws preventing retrospective declarations of parentage from being granted to intending parents who used a known donor in DAHR procedures should be repealed.

The report also recommends that there should be no requirement that domestic surrogacy arrangements involve a genetic link between the child and at least one intending parent, but that this should be included in the conditions governing recognition of international surrogacy arrangements to act as a safeguard against the sale and trafficking of children.