Lack of surrogacy legislation 'harmful to the rights of children' 

Would-be parents of children born through surrogacy can spend years battling in court for basic parenting rights.

Leading academics will on Tuesday call for the introduction of surrogacy legislation, saying failure to do so harms children’s rights.

University of Limerick’s Dr Lydia Bracken, who is due to address this afternoon’s joint Oireachtas committee debate on children’s rights in surrogacy, says lack of legislation “leaves the door open to children’s rights violations”.

And University College Cork’s Conor O'Mahony, the Special Rapporteur on Child Protection, will claim the current position under Irish law “entirely ignores rights in surrogacy” of a children’s right to family life and right to identity.” 

At present, there are no laws governing surrogacy in Ireland.

As a result, biological fathers of children born through surrogacy have more rights than the surrogate child’s intended mother or second parent.

Would-be parents of children born through surrogacy can spend years battling in court for basic parenting rights.

Currently, the mother or the second parent is not entitled to those rights and has to settle for guardianship — which expires when their child reaches 18.

This legal limbo means, for example, that until the mother is granted guardianship rights, she cannot stay overnight with her child in hospital, cannot give consent for them to be vaccinated, and cannot even apply for their first passport.

And, once that child reaches 18, they would have no legal standing when it comes to making important health decisions for their parents.

If, for instance, their mother or second parent dies, they would have the same legal status to their parent’s estate as a complete stranger.

Dr Bracken, who is a lecturer at the School of Law, UL, will say: “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 the children who are born through this process.

“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 needs to ensure that the intending parents who care for the child from birth can both be recognised as legal parents.

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 second intending father.” 

Professor O’Mahony will tell TDs: “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 state parties to the European Convention on Human Rights must provide a pathway to legal recognition of these family relationships.

“Ireland is bound by this obligation.” 

A key piece of work in the surrogacy debate was his 'Review of Children’s Rights and Best Interests in the Context of Donor- Assisted Human Reproduction and Surrogacy in Irish Law'.

Published in December 2020, it made a number of recommendations.

These included one that the Oireachtas should enact comprehensive legislation regulating surrogacy “at the earliest opportunity”.