The complexity of regulating for international surrogacy in Ireland was laid bare at the first sitting of the Oireachtas Committee that is examining the issue.
Representatives of the Department of Health, the Department of Children and the Department of Justice who are "working collaboratively" went before TDs and Senators to tease out policies and principles around legislating for international surrogacy here.
In her opening statement, Tracy O'Keefe of the Department of Justice noted that international surrogacy arrangements raise "complex and important questions of rights and ethics", concerning areas of law that intersect across the remits of several Government Departments.
The job of the Oireachtas Committee, to whom Ms O'Keefe was presenting, is to offer recommendations after 12 weeks of hearings that will see children born through international surrogacy, their parents, and surrogate mothers be protected under Irish law.
At the moment, legal motherhood is based on birth rather than genetics. The birth mother of a child has automatic rights of parenthood and guardianship in relation to the child.
The genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child under the Status of Children Act 1987. If the declaration of parentage is granted, the father may apply for guardianship under the Guardianship of Infants Act 1964.
An intending mother of a child born through surrogacy, while not the legal mother of the child under Irish law, may apply to court to be appointed a guardian of the child under the same Act. The legal position is the same for a male intending parent who is not the genetic father of the child.
Most countries deal with surrogacy under family law
Many the TDs and Senators on the Committee questioned if, like Ireland, other European Countries are grappling with laws around surrogacy.
The Department representatives were not aware of other EU states examining the issue, which means there's little guidance or experience to draw from. Most countries deal with the issue of surrogacy under family law.
Assistant Secretary at the Department of Health Muiris O'Connor pointed out that like other EU countries, Ireland is struggling to determine how to provide for this kind of legislation.
It was noted however, that the European Court of Human Rights has considered cases relating to international surrogacy arrangements in the context of a child's right to respect for his or her private life under Article 8 of the European Convention on Human Rights.
An Expert Group has also been set up by the Hague Conference on Private International Law, which is examining private international law issues in relation to the legal parentage of children and international surrogacy arrangements. This group is expected to submit its final report in 2023.
In Ireland, the issue of surrogacy is being dealt with by the Department of Health under the Assisted Human Reproduction Bill which was approved by Government back in 2017.
The Bill seeks to regulate the area of AHR to assist people to have children safely; clarify the legal position of children born from these practices; and ensure research and new reproductive technologies are carried out within a prescribed ethical framework.
The Department of Health appears eager to get the bill through the Oireachtas before the summer recess, which led a number of Committee members to question the urgency.
Why was the Committee on International Surrogacy under pressure to examine the issue and offer recommendations within three months, just to meet the time frame of a bill that had been in existence for four years?
The Department of Health officials pointed out that it was never intended that the AHR bill would address international surrogacy.
As the Committee progressed, questions emerged as to whether international surrogacy merited inclusion in the Assisted Human Reproduction Bill at all.
The Department of Justice and the Department of Children said it depended on the recommendations of the Committee.
Department of Health said while the Committee's conclusions would be supported, the AHR bill was about regulating "domestic healthcare" and given the complexity of international surrogacy, they could not see the committee's conclusions being legislated for in the AHR bill.
In an ideal world, it would be accommodated, they said.
Muiris O'Connor clarified that the Department was not saying that the issue of international surrogacy was not urgent, but the path forward for international surrogacy was not clear cut.
The Department of Children noted that international commercial surrogacy does raise concerns about "the commodification of children, exploitation of women in poorer countries, the risk of child trafficking and the child’s right to know their identity".
They asked that all parties consider not only their rights and best interests as children today, but also how they will feel when they grow up, and as adults consider the circumstances of their birth.
Concerns over 'narrow approach'
Professor Conor O'Mahony, author of the report presented to the committee suggesting that changes needed to be made to protect children's rights law, said that there seemed to be a sense of urgency to get this put through the Dáil before the summer recess.
But speaking on RTÉ's Drivetime, he said he would have concerns that the "narrow approach" would create a situation where some children would get full access to their records, right to identity and family life while others would not.
He said that the bill was only proposing future cases of domestic surrogacy and there was no provision of cases of international surrogacy and travel outside of Ireland or retrospective cases.
"I would have concerns from a children's rights point of view as some children would have their right to identity fully protected by the law, while others would potentially would have neither recognised."
He said it could create a situation where children are basically discriminated against based on the circumstances of the birth, contrary to children's rights law, and that Government could politically risk now passing a law that only deals with parts of the picture.
He said that the bill has been eight years in the pipeline and once this is enacted, it might be a time again before it is reviewed.
His own recommendation would be that it would be better to enact a comprehensive act that would cover the full range of circumstances rather than carving it up to situations where discrimination would arise. Although working further on the bill would delay progress, he did not think it would be a couple of years of delays and said that he had suggested pathways to address this if a version of recommendations could be done quicker than that.
He said that he would hate, after eight years of waiting, to get to this point to see a last minute rush resulting in a situation where things that are important are omitted.
