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Joint Committee on International Surrogacy debate -
Thursday, 12 May 2022

Analysis of the Issues Paper

We will resume in public session. Our second session will consider the issues paper furnished to the committee by the relevant Departments. On behalf of the committee, I welcome Dr. Conor O'Mahony. Before we begin, I am required to repeat the note on privilege and housekeeping matters. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory relating to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. There are some limitations to parliamentary privilege for witnesses attending remotely from outside the Leinster House campus and as such, they may not benefit from the same level of immunity from legal proceedings as witnesses physically present do.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit a member to participate from outside the precincts of Leinster House and any member attempting to do so will be asked to leave the meeting. In this regard, I ask any member participating via Microsoft Teams to confirm that he or she is on the grounds of the Leinster House campus prior to making his or her contribution to the meeting. I remind those present to wear masks where possible throughout the meeting. I invite Dr. O'Mahony to make his opening statement.

Professor Conor O'Mahony

I thank members for making time to speak again with me this morning. I apologise for being unable to attend in person on this occasion. My submission will focus on the issues paper provided by the Departments of Health; Justice; and Children, Equality, Disability, Integration and Youth to the committee in advance of its hearing on 7 April that raises a number of concerns regarding recommendations made in my report of December 2020 that examined children's rights and best interests in the context of donor-assisted human reproduction and surrogacy in Irish law.

It is somewhat regrettable that the three Departments never took the opportunity to contact me following the submission of my report to raise these concerns and to afford an opportunity for them to be discussed further. It was also regrettable that I did not have sight of the issues paper prior to the hearing on 7 April because this made it very difficult for me to respond properly to these concerns during my own appearance at this hearing. For this reason, I am grateful to the committee for providing me with the issues paper and giving me an opportunity to respond to it today.

In brief, the main points raised in the issues paper regarding the recommendations in my report were that they would leave Irish courts with no real choice as to whether to recognise international surrogacy arrangements, would leave foreign surrogate mothers with fewer protections than Irish surrogate mothers, would give rise to practical difficulties in arranging court hearings before children born abroad are brought to Ireland, would be inconsistent with existing legislation relating to citizenship and passports and would give rise to constitutional concerns with respect to the retrospective reassignment of parentage from birth parents to intending parents.

Having carefully considered the issues paper and done further analysis on it, it is my considered view that these concerns are based on an incomplete understanding of the recommendations and the associated legal landscape and are beset by logical inconsistencies. On the first two points, the recommendations in my report provide an outline for a legislative framework for the recognition of international surrogacy arrangements where and only when they meet minimum standards, including in respect of the protection of the surrogate mother, and that an Irish court would have to assess whether or not those standards were met and would have a clear basis for refusing to recognise those arrangements if these standards are not met. The Government’s current proposal of leaving international surrogacy entirely unregulated by excluding it completely from the assisted human reproduction Bill does neither of these things. It leaves foreign surrogate mothers with no protection whatsoever under Irish law and creates a situation where applications by intending parents for parentage and guardianship will invariably be approved with no opportunity to consider any of the legal or ethical issues arising in respect of the surrogacy arrangement. As such, the Government’s proposed approach ignores the very issues about which concerns are raised in the issues paper. It allows for a situation whereby Irish couples can bring children here in circumstances where surrogate mothers were seriously exploited or did not properly consent and allows for the parents to be recognised eventually as parents or guardians without any scrutiny of the treatment of the surrogate mother.

For this reason, the only way to apply protection and safeguards in Ireland to the recognition of international surrogacy arrangements is through bespoke legislation, as recommended in my report.

The claims made in the issues paper regarding practical difficulties in hearing applications for recognition of international surrogacy before the child is brought to the jurisdiction are very much overstated. Remote court hearings are already an integral feature of our courts system following the Covid pandemic. Short notice is not a problem of any real significance. It is possible in most cases to predict the date of birth of a baby pretty accurately to within a couple of weeks. The hearings can be scheduled in advance. In the event the baby is very premature, the baby will in that circumstance have to stay in hospital for some time anyway and will be unable to travel. Therefore, any question of time pressure to allow the child to be brought to Ireland does not arise in that way.

The rationale in my report for recommending that the application is heard before the child arrives in the jurisdiction is that it is the most effective way of giving an Irish court a choice of refusing to recognise the international surrogacy arrangement, which is one of the concerns the issues paper expresses. This may be because the surrogate mother has not genuinely consented, local laws have not been observed or the child's right to identity has not been protected. It would leave these issues to be resolved in the country where they arose and avoid the cross-jurisdictional challenges that would arise after the child has been brought to Ireland. These would make it more likely that an Irish court would gloss over problems with the surrogacy arrangement on the basis that the child is now living here and has established a family relationship with the intending parents. Having said this, it is important to stress that if it is felt it is more practical to hear applications for recognition of international surrogacy arrangements after the child has been brought to Ireland there is no reason in principle this could not occur. This is not a basis or adequate justification for leaving the recognition of international surrogacy arrangements entirely unregulated. It would simply be a reason to hold the application and court hearing after the child arrives instead.

Questions of inconsistency with existing legislation governing citizenship and passports ignore the fact that the legislation is enacted by the Oireachtas and open to modification by it. It is entirely within the gift of the Oireachtas to adapt citizenship legislation to the unique requirements of international surrogacy. For reasons already alluded to in the earlier session, it is in the best interests of the children involved to do just this.

The issues paper makes a claim that constitutional issues would arise if legislation allowed for retrospective reassignment of parentage from birth parents to intending parents. This relies very much on a Supreme Court decision from 2009 in McD v. L. This position is a flawed interpretation of the constitutional case law. It relies on a Supreme Court decision that was not concerned with the issue of surrogacy or the issue of retrospective assignment of parentage. The decision did not establish constitutional rights of sperm donors. In fact, it found they did not have constitutional rights. Contrary to what the issues paper claims, it did not draw any distinction between known donors and unknown donors since it was only concerned with a known donor. It simply did not consider the position of unknown donors.

For all these reasons, to claim that McD v. L establishes that it would be unconstitutional to retrospectively remove parentage from a known sperm donor, and that by the same token it would be unconstitutional to retrospectively remove parentage from a surrogate mother, is a distortion of the judgment. In the absence of any legislation governing assisted human reproduction at the time of the judgment, the entitlement of the father to parentage flowed solely from his genetic relationship to the child and existing legislation governing declarations of parentage. If an unknown donor were to have become aware of the identity of his child and then applied to a court for a declaration of parentage, the unknown donor would have been entitled to this declaration in exactly the same way as the known donor. There is no distinction between the two. Nonetheless, as we have heard in previous hearings, the Children and Family Relationships Act 2015 did legislate to allow for the retrospective removal of parentage from unknown sperm donors. Therefore, it is quite clear that McD v. L does not establish any general principle to the effect that the Constitution is an impediment to legislating for retrospective removal of parentage.

The relevant section of the issues paper, having relied entirely on McD v. L, ignores the more recent and much more relevant decision of the Supreme Court in MR v. An tÁrd-Chláraitheoir in 2014. This is the only Supreme Court case we have that directly considers the question of surrogacy. The court stressed that the regulation of surrogacy is quintessentially a matter for the Oireachtas and called on the Oireachtas to enact legislation in this area. This clearly establishes that the Oireachtas has a very wide latitude in deciding on the appropriate approach in legislating for surrogacy and that the courts would be very unlikely to find any law enacted in this area is unconstitutional. While surrogate mothers, unlike sperm donors, would have constitutional rights in respect of the child, those constitutional rights, like any constitutional right, would be open to legislative intervention and limitation aimed at securing the best interests of the child. We already see examples of this in adoption law, for example section 31 of the Adoption Act 2010.

For all of these reasons it is my considered view that the issues paper fails to provide convincing reasons in support of rejecting the recommendations made in my 2020 report. The points made in respect of international surrogacy and retrospective recognition of surrogacy arrangements are internally inconsistent and based on a flawed understanding of the constitutional case law. Moreover, no rationale is provided for the rejection of other recommendations made in my report, including on the right to identity which was discussed in this morning's session. It remains my firm view that the Government’s proposals will result in legislation which is contrary to Ireland’s commitments with respect to the child's right to family life, the right to identity, the best interests principle and the principle of non-discrimination. I am very happy to discuss all of these points further with the committee.

I thank Dr. O'Mahony for being with us today and for his comprehensive opening statement.

I thank Dr. O'Mahony. I am glad he has an opportunity to respond to the issues paper. It is only fair given that it comments on his comprehensive report. It is important to begin by stating Dr. O'Mahony office is on a statutory basis. He has a statutory responsibility to report to the Government on legislative effects that impact child protection. He was commissioned to engage on the report. I want to say this and park it. It establishes more than adequately his objective bona fides on this.

In his more comprehensive submission document Dr. O'Mahony quotes Mr. Justice O'Donnell in the more recent case of MR v. An t-Árd-Chláraitheoir. I emphasise that Mr. Justice O'Donnell is now the Chief Justice. In his judgment he stated:

It is surely most clearly and profoundly wrong from the point of children born through an unregulated process into a world where their status may be determined by happenstance, and where simple events such as registration for schools, attendance at a doctor, consent to medical treatment, acquisition of a passport and even joining sports teams may involve complications, embarrassment and the necessity for prior consultation with lawyers resulting in necessarily inconclusive advice....The need for legislation is even more urgent today.

We need legislation. We need a framework that works and protects the rights and interests of everybody in this, particularly with regard to the child and child protection. From what I can gather, and from what we can gather from what Dr. O'Mahony has said to us, is that we are looking at a framework that involves an initial threshold for parents that is assessed in Ireland when they are embarking on a surrogacy journey. This needs to be mandated or overseen by an authority or judicially. We need this threshold. We also need an oversight mechanism to safeguard the surrogate mother and ensure her consent. Ideally this would be done before a pregnancy begins. There should be guidelines that are overseen or checked. Into this would be added a body of knowledge from an authority with experience of the country and specific clinics within it.

Then we have a system of a baby born and judicial oversight of an application, perhaps for an interim parentage order until there is a full parentage hearing in the Irish courts when a baby comes home. Within that we need a bespoke change to citizenship requirements so it is not just the father's DNA but perhaps the mother's. That then opens up the possibility of same-sex female couples availing of surrogacy also. Is that more or less what we are looking at, in practical terms?

Professor Conor O'Mahony

In broad terms. There are points of detail there that could vary as to the exact sequencing of those steps and the exact forms those steps could take. To take the Senator's last point on the citizenship issue first, it is very important that is included. Ideally, you do not want to have the situation of statelessness alluded to in this morning's session arising for any child. The Verona Principles are very clear on that. It is not in the best interests of children to be left stateless in circumstances where the law of the jurisdiction where they were born does not recognise them as a citizen of that country but equally they are not yet recognised as a citizen of Ireland. We also know from existing experience there can be delays in reaching the point where citizenship is granted. That is why my report recommended that in the best interests of the child you would deal with the citizenship question at the same time as you would deal with the parentage question, rather than having a separate process that might result in a hiatus during which the child is stateless. The issues paper essentially dismissed that recommendation on the basis that would create difficulties with existing citizenship legislation. To my view, that is not an adequate response to that. If there are inconsistencies with existing citizenship legislation then you amend that legislation through miscellaneous provisions of this Bill. That is what the Oireachtas is there to do and it can do that at any time.

Very briefly on the MR decision, it makes clear the courts see the existing gap and the lack of regulation as being problematic for children and as not being in the best interests of children. The courts want the Oireachtas to legislate in this area. They have stressed the decisions to be made as to the detail of that are ones for the Oireachtas and not for the courts. That gives us a very clear signal the risk the issues paper alludes to of potential challenges resulting in laws being declared unconstitutional in the future is a very low risk because the courts have made it very clear the social policy nature of surrogacy is such that it is really for the Oireachtas to make those decisions and the courts are really very slow and reluctant to get involved in second-guessing those decisions. As such, the Oireachtas has a very wide latitude to adopt something, whether it is exactly along the lines the Senator just outlined in her questions or some variation on that theme. They key point I want to make there is that is all within the gift of the Oireachtas. When saying we cannot do x, y and z because of a risk of unconstitutionality, you would need to establish very clear reasons for doing so and I do not believe that has happened to date, or is especially likely given the tone of the MR judgment.

I thank Dr. O'Mahony for coming before us again. I am reading a 2018 document from the UN special rapporteur and wish to cite a portion:

There is growing unease that the practice of engaging surrogate mothers in States with emerging economies to bear children for more wealthy intending parents from other States entails power imbalances and thus risks for both the children and surrogate mothers.

As Government Special Rapporteur on Child Protection, I am sure Dr. O'Mahony shares those concerns. What are his views on traditional surrogacy?

I remind Dr. O'Mahony he is here to discuss the issues paper so I ask he keep his comments relevant to that.

Yes, it is part of the issues paper.

Professor Conor O'Mahony

Surrogacy comes in many different forms. We know there are many different combinations and permutations as to which parties provide the necessary genetic material in a surrogacy arrangement. Ultimately, from the point of view of the international children's rights standards that guided my work for my report and the work of the UN special rapporteur, they do not have all that much to say about the different versions of surrogacy and exactly who contributes what to the process. What the standards say about their key guiding principles including best interests, non-discrimination, right to family life, right to identity and those principles, particularly the non-discrimination element, make it very clear the circumstances of the child's birth, including which parties contributed which genetic material, should not have any bearing on the level of legal protection for those various rights a child enjoys.

As to the issue of various emerging economies and different levels of regulation and so on, this is precisely why I am concerned with seeing regulation in Ireland of international surrogacy arrangements that would provide clear standards that must be met before Ireland recognises any international surrogacy arrangements, in order to avoid precisely the kind of concerns the Senator has alluded to arising. The Government's proposed approach of leaving the issue entirely unregulated completely fails to address that because it creates a situation where the child is brought to Ireland, there is nothing in place the parents must prove or no standards they must meet. They simply find themselves, two years after the child is born, with a guardianship application that has no consideration whatsoever of the nature of the surrogacy arrangement or the standards applicable in the country where it took place. My concern is that approach, that absence of regulation, magnifies the concerns the Senator has alluded to there and that if we are really concerned about them the approach to take is to have bespoke legislation that puts in place strong regulation.

When a couple uses commercial surrogacy what does Dr. O'Mahony believe should appear on the birth certificate if the egg has come from a donor?

Professor Conor O'Mahony

On the birth certificate and exactly what goes on it, my report recommended there are a number of potential knock-on implications around the question of the exact relationship between the birth certificate and whatever register is created to facilitate the right to identity. There are different possibilities with respect to what exactly you put on the birth certificate and what you keep on the separate register. There are complications that arise from each of those various reports so the recommendation in my report was there needed to be a further and more detailed piece of work done about the implications for the system of registration of births in order to work out the most appropriate model. What I am very clear on is the identity of the surrogate absolutely needs to be recorded. That needs to be available to the child. My recommendation was it should be available to the child from birth and not only at a particular age.

Whether the identity of the surrogate is recorded on the birth certificate itself or in a separate register is quite a technical and complicated question on which further work needs to be done that goes beyond the scope of the report I produced.

The issues paper states the recommendations in Dr. O'Mahony's report appear to afford foreign surrogate mothers less protection than Irish surrogate mothers would be afforded under the AHR Bill. I ask that he outline his views on this. What additional safeguards could be introduced to ensure foreign surrogates are as well-protected as Irish surrogates?

Professor Conor O'Mahony

The first point is the recommendations in my report provide a level of protection for foreign surrogate mothers. The Government's proposal of leaving international surrogacy completely unregulated provides foreign surrogate mothers with no protection whatsoever.

As to how you could go about this, again, there is a range of ways to approach it. You could mirror exactly the protections provided in the domestic framework proposed in the Bill in respect of the laws governing international surrogacy arrangements. There is no reason in principle why you could not make them completely equivalent. The risk associated with that approach is if it is too prescriptive it may have the result of excluding a significant number of international surrogacy arrangements from the scope of the legislation, which ends up creating a separate problem, namely, you then have couples going abroad, bringing children back to Ireland and then finding themselves in the same difficulty we currently see them in, which is like a limbo or twilight zone. For that reason, looking at the issue from the perspective of the child and again the principle of non-discrimination whereby the child should not be discriminated against based on the circumstances of his or her birth, my view was given the international nature of it it would be preferable to set minimum standards that must be met in every case but then also allowing for a degree of flexibility to recognise different jurisdictions will do things slightly differently.

It is to try to avoid a situation where there are too many children born through international surrogacy finding themselves excluded from the legislation simply because it is too prescriptive. That was the position I arrived at in the report but, as I say, one could, in principle, completely equalise those sets of protections. What should not be done and what is no answer to the concerns about protection for the surrogate mother is to provide no protection whatsoever, and that is where we find ourselves if we leave international surrogacy completely unregulated.

I have one question in the last few seconds. As the special rapporteur on child protection, does Professor O'Mahony believe international commercial surrogacy is right or wrong?

First, we are out of time. Second, perhaps Professor O'Mahony will keep his comments to as they relate to the issues paper.

Professor Conor O'Mahony

My concern here is to deal with the reality of the situation in which we find ourselves. International commercial surrogacy exists, and because it exists and we cannot wish it out of existence, it is not within the gift of the Oireachtas to completely prohibit recognition of international commercial surrogacy. That is clear from the case law of the European Court of Human Rights. Therefore, if we are to take our human rights obligations seriously, strong regulation in the best interests of the child is the appropriate response to concerns about international commercial surrogacy. Prohibition is neither realistic nor within our gift.

I thank Professor O'Mahony.

I am delighted Professor O'Mahony was able to return to the committee. In the first meeting we had, it was great when he appeared in the afternoon session because in the first session I felt there was no sense of urgency from some Departments. There was a sense that it was impossible and of wondering how we could do it. As has been detailed in Professor O'Mahony's paper, since 2020 there is a range of solutions. That is what has struck me in all the committee hearings over the last number of weeks. While it is complex, there is a bunch of solutions staring us in the face. I am glad Professor O'Mahony had the opportunity to come to the committee and to put on record his response to the issues paper. He also gave us a very detailed brief.

Professor O'Mahony said in his opening statement: "It is my considered view that these concerns are based on an incomplete understanding of the recommendations and the associated legal landscape, and are beset by logical inconsistencies". On the last occasion he was before the committee, it emerged that there has been no further contact or follow-up from the Government of any of the Departments since he had done his paper. Now that this committee has held a number of meetings, has there been any follow-up from the Government with regard to his 2020 paper?

Professor Conor O'Mahony

The simple answer is "No". In my three years as special rapporteur, my approach has been to maintain an open-door policy in my dealings with Departments. I have always been very happy to discuss any of the issues arising, be it specific recommendations made in my reports or more general issues arising in everyday law and policy work. I have always been happy to have those conversations. I have had conversations at various points with officials from the Department of Children, Equality, Disability, Integration and Youth about ongoing work in their remit. That is a very helpful and productive way to do things, especially on something as technical and complex as surrogacy, to ensure people are not speaking past each other. It would have been good, and still would be good, if there was an opportunity to have some of those conversations to try to work out some of those points of detail, but to date it has not happened.

I am very disappointed to hear that. When it came up at that meeting with Professor O'Mahony that they had not been in contact, I thought they would have realised that they should be in contact and that they would get in contact in the interim. I cannot speak for anybody else, but I am delighted to get his response back and to have him here today to put it on the record. I believe that much of the work Professor O'Mahony did in 2020 is the framework for us. In my view, it makes our work very easy, even though I know it is difficult. I am not trying to dismiss the difficulties or any potential issues with it, but we have a really good framework and I hope that it is what we will be using in our report. I will certainly be advocating for that.

Again, I thank Professor O'Mahony for all his work.

I thank Professor O'Mahony. It is great to have him before the committee again. There is always a great level of clarity when he appears before the committee and I welcome that.

I am grappling with all these legal issues, so forgive me. As unknown donors can become known donors through DNA, it is important to sever those rights. Where do we sever those rights? There is a dispute in the issues paper regarding the retrospective recognition for children, saying one cannot remove parentage retrospectively. Will Professor O'Mahony elaborate on that point?

Professor Conor O'Mahony

It is a tricky point. I will say a little more about the Supreme Court decision in McD v. L. That was a case in which a lesbian couple had a child using a sperm donor who was a friend of theirs. When the case came to court, it concerned a dispute which had subsequently arisen. The original agreement had been that the parties would have an arrangement whereby the sperm donor would be known as a favourite uncle but would not be the child's father. It was a private arrangement they had come to, but there was no legal framework for it at the time. A dispute subsequently arose. The father applied for guardianship and access to the child and the case ultimately came to the Supreme Court. The Supreme Court made a number of findings in the case, one of which was that it made it very clear that it reaffirmed the long-standing position that unmarried fathers in Irish law have no constitutional rights. They have a number of statutory entitlements to make applications to the court to be declared a parent if there is DNA evidence, to be appointed a guardian and so forth, but the Constitution provides no rights to unmarried fathers at all. That was one of the core findings of the case. Second, notwithstanding that, the court said it is normally in the child's best interests to have the opportunity of knowing the parent and, therefore, the case was remitted back to the High Court, and ultimately a decision was made in which access was granted.

What we see from that case in the issues paper is that, following McD v. L, in the Children and Family Relationships Act 2015 provision was made for retrospective allocation of parentage in cases of donor-assisted human reproduction where people had a child using a sperm donor or an egg donor before the 2015 Act came into effect. That retrospective reassignment of parentage was allowed in cases where the donor was unknown to the parties, but was not allowed in cases where the donor was known. Until I saw the issues paper, my understanding of the rationale for that was that it was based on a sense that where there are known donors there is more scope for disputes between the parties and that, rather than encouraging those disputes or allowing them to bubble up to the surface, it would be better to leave that outside of the framework of the parentage allocation, whereas if the donor was unknown, the scope for that dispute would not arise in the same way and, therefore, one could proceed and allocate parentage retrospectively. The issues paper clarifies that this was not the rationale in the 2015 Act. The rationale was instead an understanding that the known donor had a constitutional right which could not be abridged by the Bill whereas the unknown donor did not have a constitutional right. I cannot quite understand how McD v. L was interpreted in that way seeing that the Supreme Court found that the sperm donor has no constitutional right at all, irrespective of whether he is known or unknown, so that distinction cannot be drawn from the judgment. There was no consideration of unknown donors in the judgment.

Second, on the question of the entitlement to apply for parentage, it applies equally to known donors or unknown donors. As the Senator said, if an unknown donor were to become known, the donor could make an application under the existing legislation in the Status of Children Act 1987 to get a declaration of parentage in exactly the same way as a known donor would, yet the 2015 Act legislated to allow for retrospective reassignment of parentage away from that father. From that point of view, McD v. L simply does not say what the issues paper says it says in respect of the constitutional rights which are enjoyed in this context by sperm donors.

Regarding the surrogate mother, under existing law the surrogate mother would like any other mother be recognised as having constitutional rights in respect of a child born to her. That arises largely because she is currently recognised as the child's mother. Of course, as we saw in the MR v. An t-Árd-Chláraitheoir case, it is open to the Oireachtas to amend the law to remove that presumption that the surrogate mother would be recognised as the child's mother. The Oireachtas is very clear in saying that the decision on how to handle that issue is a decision for the Oireachtas and not for the courts. I reiterate the point I made earlier that we have other examples of law. Section 31 of the Adoption Act 2010 allows for adoption orders to be processed without the consent of a birth mother if it is deemed to be in the best interests of the child to do so. That would also have the effect of transferring parentage away from the birth mother and to the adoptive parents in that case.

To my mind, it is very clear that the Constitution imposes no obstacle to laws that would allow for retrospective reassignment of parentage in surrogacy cases. From a children's rights perspective for all the reasons we have heard in all of the hearings to date, we know a cohort of children are living in this disadvantaged legal world who have already been born through surrogacy arrangements and who will be left behind if the Bill proceeds in its current state. For all of those reasons I strongly recommend the legislation should include provision for retrospective allocation of parentage. I reiterate my analysis that there is no constitutional impediment to do so.

I thank Professor O'Mahony. That is great.

I apologise. I went to another meeting and I am back again. It has been meeting after meeting. In his opening statement, Professor O'Mahony spoke about exploitation. What form does that take? The people I have spoken to regard their surrogate mother as an extension of their family. We have all heard the lovely stories about the family all being one. I want to hear more about what exploitation might mean and how we should tackle that in our proposal.

At our last meeting I asked some of the families who had been through surrogacy if they believed that transferring parental rights to the intending parents should happen before the birth of the child or after. Should we support the idea of birth certificates that mark the surrogate mother for tracing purposes later in life?

We cannot impose laws for other countries as we have seen in our discussions with witnesses from the different surrogacy groups who have appeared before the committee. What core standards does Professor O'Mahony believe should be in place to ensure we protect the rights of all parties involved and provide for proper identity tracing? I again compliment him on all his good work.

Professor Conor O'Mahony

On the question of exploitation, I agree with the Deputy that we have many examples of cases where there was no question of exploitation, but that it is not to say that the risk does not exist. The risk exists and is well recognised by international human rights bodies and in the literature. There is a wide range of possibilities when it comes to surrogacy. When we legislate to regulate the recognition of surrogacy arrangements, we need our regulations to be sufficiently robust that they can deal not just with the best-case scenario but also with the worst-case scenarios. That means sometimes requiring people, who have the very best intentions and who would never do anything that would be exploitative, to jump through a couple of additional hoops just to ensure we have a framework that is also sufficiently robust to deal with people whose intentions are not so benign. That is important to say. The law must be able to cater for the worst case is as well as the best.

The Deputy asked what form exploitation might take. The key issue there is the whole question of the extent to which the surrogate is genuinely giving free and informed consent and is genuinely looked after in terms of the necessary provision of medical care, legal advice and so on. The question of compensation is an entirely different debate which members are all very familiar with; I will not get bogged down in that. That question of ensuring genuine free and informed consent is at the core of ensuring we do not have exploitation. At the minimum from that perspective, international surrogacy arrangements in the Irish courts must have a framework for confirming whether the surrogate mother gave genuinely free and informed consent to the arrangement.

If we leave it unregulated, which is what the Bill currently proposes to do, in practice a couple would engage in international surrogacy and then bring the child back to Ireland. Let us say it is the typical case where the father has provided the sperm donation and there was an egg donor. In those circumstances the father would be able to go to court and apply for a declaration of parentage because of the genetic connection. That would be granted simply on the basis of the genetic connection with no consideration of the nature of the surrogacy arrangement. The mother, who does not have a genetic connection, would not be entitled to be recognised as a parent but would be entitled to apply for guardianship after two years, which would give the mother many of the important rights in respect of making decisions for and caring for the child.

At that point if the mother has been caring for the child for two years, that application is almost certain to be granted. If we choose to do it that way, none of those processes allow for any consideration of whether the surrogate gave genuinely free and informed consent. Nor do they allow for any consideration of whether the child's right to identity was protected, that there was a framework in place for ensuring the donor was known and that there is a register allowing for tracing and so on. Leaving it unregulated ignores those risks and makes it certain that the applications will be granted. The issues paper took issue with my report on the basis that my report did not provide sufficient protection for the foreign surrogate and that it made it highly likely or certain that the application would be granted. Both of those problems loom larger in the proposed approach of leaving international surrogacy completely unregulated.

The Deputy asked about transferring parental rights pre-birth or post birth. My report recommended the pre-birth model which I believe is more in line with the relevant international children's rights standards. I know that the Office of the Ombudsman for Children took the same view earlier this morning. Having said that, post-birth is still better than a lack of any regulation, if that makes sense.

On birth certs and tracing, I reiterate what I said to Senator Keogan which is that my firm view is that there needs to be a mechanism for tracing identity, including the identity of the surrogate mother and any donors of sperm or eggs. That could be in the form of a register. What exactly goes on the birth cert is a tricky and complicated question. The surrogate mother's name could appear on the birth cert with some sort of notation to that effect. It would also be possible to leave the surrogate mother's name off the birth cert but simply have the relevant information in the register separately.

From an identity perspective, the Bill currently proposes that none of this information would be available until the child is 16. If we think about what was said this morning about the importance and benefits of early disclosure all of which was discussed in my report as well, we are saying in law that even if the parents of the child wanted to share that information with the child earlier, the law prohibits them from accessing it. To my mind that is completely contrary to children's rights.

The last point related to legislating for other countries. I reiterate that we can only do what we can do. That is why my view is that our law needs to stipulate a degree of flexibility that recognises the limits of what the Oireachtas can actually achieve. We should set minimum standards that we can stand over and accept as a country, but also allow a degree of flexibility that recognises the simple fact that it is a very wide and diverse world.

I am very pleased that Professor O'Mahony has had the opportunity to appear before the committee to provide his explanation of his report which is distinctly different from its interpretation in the issues paper provided to the committee. I agree that non-regulation is not fair. I agree with him on the need for bespoke legislation to deal with that. I also agree with Mr. Justice O'Donnell who said we need that legislation now more than ever. I do not come from a legal background which is why I value so much Professor O'Mahony's legal expertise and insight which he is providing today.

I have three questions arising from his contribution today. The first relates to citizenship and the proposal around being provided for in advance of the child arriving here.

That would hugely reduce stress on families, and it would be a very progressive and positive move. Hypothetically, is that soon enough if we are to make a determination on citizenship? What happens if, for some reason, a determination fails?

With regard to the Verona principles, we do not want a child ending up stateless. A child will obviously have assistance from the country in which he or she is born. From an Irish perspective, what happens if the determination is no? If so, is it too late?

In terms of the advice on the protection of an international surrogate mother, Professor O'Mahony said it may still leave some children in the situation in which they find themselves in today. Is there a way of dealing with that? There probably is not. If we apply standards, unfortunately some cases may not meet them. What happens in such a situation? How do we factor that in retrospectively? Is that possible? Is it fair? Is it legally possible to apply standards retrospectively? If so, how will that affect children who have already been born through surrogacy?

In terms of an age limit of 16, earlier today the Ombudsman for Children said he feels the age of 16 is not legally practical and does not know where it came from. The age of 18 is the age of adulthood and consent. The ombudsman feels that if we put in the age of 16, we could perhaps have a negative impact on other children's rights at the ages of 16 and 17. Professor O'Mahony has proposed we do not have a limitation. Does that same concern arise? Does he feel that by removing the age limitation, we will remove that whole question for other rights as well?

Professor Conor O'Mahony

On whether citizenship is soon enough, in practical terms one cannot grant citizenship to somebody who has not been born so in reality citizenship would have to be determined after the child has been born. As the Vice Chairman alluded to, there is a big advantage to making the decision before the child is brought into the jurisdiction because, if it is not made, we run into the practical difficulty we currently have as to the child's actual entitlement to enter the jurisdiction and must come up with an ad hoc solution that allows the child to be brought into the country. Again, that is all part of the rationale for why I felt it was better to have a single court procedure that would take place between the birth of the child but before the child was brought into the jurisdiction which would determine parentage and citizenship, so that by the time the parents sought to bring the child into the jurisdiction, everything would have been squared away.

What if that were to fail? That is tricky because we must strike a balance if we recognise there are significant potential concerns about surrogacy arrangements, such as the position of a surrogate mother, but also in respect of the child. We know there are risks around the law and the sale of children and there are risks around issues that relate to the protection of the right to identity. There is also the question of what if there is an arrangement that did not comply with the local framework. In that case there could be a clash between the laws of two different jurisdictions which could end up quite complex. For that reason it is fair to say there needs to be a basis on which we will say there will be certain arrangements we will not recognise.

The question then becomes when that should happen and, in my view, that should happen as early as possible. If we are not going to grant recognition because, for example, the surrogate mother did not adequately dissent or because local laws were not observed, we need to find that out very early on and that then becomes a dispute between the surrogate mother and the intending parents in the jurisdiction where the arrangement took place, which must be resolved under the laws of that jurisdiction and in its courts. It is kept in one jurisdiction and it avoids it becoming a cross-jurisdictional issue where the child is now in Ireland and we get into all sorts of very significant complications around enforcement, recognition of judgments, conflicts of law and so on. If we all agree there are certain red lines we would wish to draw to say these are the types of surrogacy arrangements we would not be happy to stand over, then there needs to be a possibility of our courts saying they are not going to recognise particular ones.

Where would that lead to? That leads to a slightly separate point, which is a point I made earlier about the protections we would provide in our domestic law for the foreign surrogate mother. If we make those completely equivalent to the protections we would provide in domestic law, they will end up being quite detailed and prescriptive. As the detailed and prescriptive regime we might have domestically might differ from the regimes in other jurisdictions, they might not always align and that would increase the number of cases in which our courts would look at an international surrogacy arrangement and say it has not met the requirements for recognition in this country and therefore they are not going to grant recognition. What does that mean in practice? It means children are back to the same situation I have already outlined, which is that the father with the genetic connection could receive a declaration of parentage, he would have to go to court to get that and that may take a certain amount of time. The mother could only ever become a guardian, could never be recognised as a parent and would have to wait up to two years to make that application.

In my report, to smooth over that particular issue with the mother and the two-year wait for guardianship, I proposed a halfway solution to steer people towards the best practices that would meet the standards we would like to see met, which would be to say, if a person meets those standards, he or she will be eligible for full parentage. We have heard from the families repeatedly that parentage is what they want so that is an incentive for them to adhere to the highest standards. On the other hand, if there are cases that fall short of that in certain circumstances, for example, if people use an unknown donor and, therefore, the right to identity could not be traced, they would not be entitled to parentage but could still apply to the court for guardianship. That would mean the application would have to be heard by the court and decided in terms of the best interests of the child.

I apologise to Professor O'Mahony but I must stop him in full flow. As everyone has been so good about sticking to the time allocated, I had better lead by example and call Senator Seery Kearney.

It would have been okay for Professor O'Mahony to continue given the meeting is emptying out.

In the first round of questions I asked Professor O'Mahony about a sequence of events because, in my mind, they anticipate some of the complex issues that arise. My fear from his response to the issues paper and from his opening statement is that by having the application via a virtual hearing, which is acceptable to me, and where it emerges there are problems with consent or something along those lines, parents find themselves in a situation where the child is refused entry to Ireland. What does that mean? Do the parents need to establish a home in the country in which the baby was born?

I believe it would be much better to have a regime in place that dealt with consent and issues and had some foresight before a pregnancy begins. That would be the preferable safeguard for everybody, including the child who may by citizenship and a genetic link to his or her father have a right to be an Irish citizen but not a right to come to Ireland because of a consent issue. A safer sequence of events would be to have a vetting of the factors that go into a surrogacy agreement within Ireland. I understand we are dealing with a different jurisdiction etc., so there is complexity, but I believe that it would be better to have a checklist.

In 2012, while Alan Shatter was the Minister for Justice, a document was issued that was necessary for the issuing of an emergency travel certificate, and that is what is used. That involves a member of the embassy overseeing the DNA testing in the presence of the surrogate mother and her presence is about assessing whether consent is given and whether there is an understanding. The document is to give an assessment in that meeting. It is a case of us doing it by using the body of knowledge that would arise around that country and perhaps the clinic within that country, because that can vary. I ask Professor O'Mahony to comment on the sequencing of events.

Professor Conor O'Mahony

In principle, one could include that in the Irish legislation.

It is a little tricky because it kind of gets into the question of to what extent are we seeking to determine in Ireland whether a certain act would be legal in another jurisdiction. It is a little tricky but it could possibly be smoothed over and we could have a position where it would be seen as just the authorisation or green light to the Irish parents that would allow them start on a journey that will lead them to another place later in Irish law. We could have that, acknowledging there would be a certain degree of limitation in the event of it clashing with something in the law of the jurisdiction where the arrangement takes place. Ultimately, that law would have to take priority because it would be the law in effect in that jurisdiction.

My terms of reference for the report required me to look to the international legal framework and output of the UN special rapporteur on the sale and sexual exploitation of children. The UN special rapporteur is quite clear in stressing the importance of having the opportunity for the surrogate mother to have the chance to raise an objection after the child is born.

To be clear, I do not see these as mutually exclusive.

Professor Conor O'Mahony


We could have a green light and a presumption that an emergency travel certificate for the baby would be issued and an interim parentage order to cover any issues that would arise once the child leaves the jurisdiction in which he or she is born. In that jurisdiction, if the parents are on the birth certificate, those parents have all the rights that flow from it. The minute they step on a plane and come back to Ireland, they suddenly do not have the right to consent for medical treatment or such things. The two elements are not mutually exclusive. We can have a presumption and a green light if it looks like everything is there with a follow-up remote hearing and perhaps some interim arrangement that checks in and verifies that payments are going directly to the surrogate. There would be safeguards in place that must be proven along the course of the pregnancy. Ultimately, there would be a hearing that gives an opportunity for the surrogate to object so she is maintaining bodily integrity and has an opportunity to voice an objection to say the process was fraudulent or otherwise, for example.

Professor Conor O'Mahony

Yes. The complexity arises when the surrogate raises an objection. I may have misinterpreted the Senator but it sounded a little like she was mentioning that the surrogate would raise that objection in the hearing before the Irish courts. No matter the legal framework, we would not want to recognise surrogacy arrangements from a jurisdiction that did not ensure the surrogate had consented freely. If the surrogate was raising an objection about an absence of free and informed consent, that objection would be more appropriate for raising in the courts of the jurisdiction where the arrangement took place. They would the one who would ultimately determine authoritatively whether the surrogacy arrangement met the requirements of local laws. That is the same way it would happen for our domestic framework that we are looking to enact; if the surrogate raised an objection, the Irish courts would determine that.

This raises the tricky question that if a surrogate in another jurisdiction raises a claim in that jurisdiction's courts stating that she did not fully consent, how would the Irish system respond? There could be a position where we would simply say we would recognise whatever judgment those courts reach. That is one possible solution. That raises the question again of where is the child and whether he or she is here or there. If a child has already been brought here but the courts of the other jurisdiction were to decide that it was not a valid surrogacy arrangement in that jurisdiction due to a problem with consent, it gets into some difficulties around conflict of laws and enforcement issues for that judgment. These could potentially be overcome but in some ways there would be fewer variables if the child remained in the jurisdiction where the child was born until that dispute could be fully resolved.

That brings the prospect, I suppose, of parents having to stay in that jurisdiction in that time as a deterrent from entering into less than satisfactory arrangements.

Professor Conor O'Mahony

Yes. Many of the recommendations in my report and aspects of the document speak to the potential downsides and consequences where people stray outside the lines. Much of that is aimed at encouraging the best practice in the first place. In the event that people are very careful and selective about which countries they go to and the arrangements in which they engage, making sure everything is completely on the level from day one, the prospect of things going wrong in that way and difficulties arising at a later point would be greatly reduced to begin with. That is not to say it would never arise and, of course, things can happen and mistakes can be made. People try to eliminate that prospect and my judgment was this would be the lesser of two evils and it would be better than to have such a case rather than a case with a looser framework allowing more scope for some of those risks to come up on a more regular basis.

I thank Professor O'Mahony. I have put these questions to different witnesses and a concern I have is that this committee is to last for three months. Today we have had the ombudsman before us and we have had great witnesses before, particularly families involved with surrogacy. What is Professor O'Mahony's opinion on that, particularly as the legislation is so important?

I am asking about the timescale first because while this is not criticism of any Department, this matter will fall under three or four different Departments. I said the last day that I wonder whether there should be one Department leading this and working with the other Departments. When dealing with matters and going from one Department to another, they all do their best, as the witness knows, but sometimes it just does not work. What is Professor O'Mahony's view on the time allowed to our committee? Is the work doable or do we need to look at a longer timescale, practically speaking? There is also the issue of this falling under so many different Departments.

Professor Conor O'Mahony

On the timeframe question, there is no doubt the committee has been given a bit of steep hill to climb to do all this in three months. I commend all the committee members on their hard work and it is very clear people are putting in an enormous amount of time and effort and are taking the matters incredibly seriously. I know many members are prefacing questions by saying how complicated the issue is and they are still learning but it is clear that all the members are very much getting their head around the topic despite the complexity. It is a result of the hard work everyone has put in, which is fantastic to see. There is much to do and three months is a very short amount of time in which to do it. The report must also be produced. I know well in my job, where I write many reports, that much time and effort goes into writing the report after putting in the time to gather information in the first place. It is a very short timeframe.

Aside from the work of the committee, the target of getting the Bill done before the summer recess is very tight. It is in some senses an arbitrary target. I know people in the Civil Service and legislative system more generally might say it is a slightly naïve comment because things can change from year to year, including the order of business. It has taken us years to reach this point and of course we would like to see this done quickly. We would all like to see that there would be no further delay but whatever we enact will regulate surrogacy in Ireland for a generation. Realistically speaking, there is not going to be an appetite to come back and tweak this in a big way any time soon. I am certainly of the view that it would be much better for this to take another six or 12 months, if necessary, to get it right rather than putting through something now that is incomplete or where there may be difficulties and it remains how we do things for 20 years or more.

Ideally, I would rather see the committee given a little more time and space to really do its work to the best possible standard. Looking at its current form, I would rather see the Bill coming back around next year than being enacted in its current form.

I would like a little bit longer. I would not mind working through the summer to get the Bill through correctly and as quickly as possible. How does Professor O'Mahony feel about all the different Departments being involved? To me, that is a big question.

Professor Conor O'Mahony

I apologise as in formulating my answer, I forgot the second part of the question. There is a reality that the nature of the topic cuts across the remit of several Departments. It is part of the reason it has taken so long to get where it is.

It is also part of the reason why it is so hard to get consensus on this issue because when one has that many different stakeholders who all have their own views and priorities, it can be very difficult to get them all on to the same page. There is no doubt that is a significant complicating factor in formulating this legislation and in arriving at the best possible result. As the old saying goes about too many cooks, which might be a little too harsh to use in this context, it is just the reality that the more people that are involved, the more variables there are in the equation and it makes it harder-----

And it takes longer, sometimes.

Professor Conor O'Mahony

I am not sure that I am best placed to suggest what the solution is to that, being an academic and not being a person who is immersed in the day-to-day work of Government, or whether it is possible for one Department to take ownership and a leading role or whether that just does not fit with the way in which business is done. I certainly acknowledge that it is a factor here which definitely makes the whole issue much harder to deal with.

I thank Professor O’Mahony very much.

I thank Professor O’Mahony. I call Senator Seery Kearney.

There is one issue I wish to raise. There is a misunderstanding in some of the questioning that has been going on that we need to talk about in regard to the birth certificate. Where a child is born in a country, their birth is registered in that country and they receive a birth certificate which is a legal document. When the person applies for a passport, and when all of the legal issues in Ireland have eventually been dealt with, the passport forever and a day shows that the person's citizenship is of Ireland but the place of birth on the passport states the city and the country where the person was born. We have had discussion as to whether the surrogate mother should be on the birth certificate or not and how that should be. That is not in the gift of the Irish Government to legislate for. We are talking about a measure by which we can ensure the identity and gestational information of the surrogate mother, and the donor if there is a donor involved, are registered and that there is a requirement to register it.

There has been a misunderstanding in the committee, and the professor’s discussion this morning highlighted it to me to be fair, which is that it is not in our gift to legislate for that.

Professor Conor O'Mahony

In the international context, the Senator is correct. The other issue which further confuses this is that this Bill is also dealing with domestic surrogacy. The situation, of course, would be slightly different with respect to domestic surrogacy and a decision would need to be made on the domestic surrogacy framework about how the birth certificate addresses that question. In respect of international surrogacy, what the Senator said is exactly right. That creates a further decision to be made on whatever provision is made around how the birth certificate would be handled by the domestic frameworks. Would it be aligned with the position of international surrogacy arrangements or would there be some differential position between the two?

I go back to the key point for me - I do not have a strong view on what exactly the birth certificate says one way or another - that there must be a mechanism for the child to trace his or her identity. There must be some form of register that includes details about the surrogate mother and about any donors that is accessible, as I have already recommended, from birth through the parents initially and then through the child as the child matures. The Senator is correct in saying that arrangements for the registration of births in the other jurisdiction is a matter for that jurisdiction and not a matter for the Oireachtas.

As a follow on to that and in the domestic context, we need to be assured or to give consideration to the fact that that Irish-born child by surrogacy will use that document for an application to school as birth certificates are produced for many things. While these children have a right, absolutely, to their identity and to their gestational origins, and nobody is disputing that we need a mechanism that preserves that, they also have a right when presenting themselves to keep that information private. A birth certificate that mandates or obliges a surrogate mother, and a donor perhaps, to be named on the certificates, as has been suggested on this committee by one of our members, undermines that right to privacy for that individual. When the person goes to get married he or she will have to produce a birth certificate at that stage as an adult and at that point he or she may not wish to go into that detail with the registrar, or whatever, but that does not mean that the person is not fully cognisant of all of the information.

Professor Conor O'Mahony

That is true and is one implication of that approach. The other implication is on the position of the family. On the one hand we discussed this morning that there are many good reasons for early disclosure and the evidence points to that being the best approach. At the same time, there is also the reality that the UN Convention on the Rights of the Child makes it clear that it is for parents to guide their children in the exercise of their rights. The Irish Constitution provides strong protection for the autonomy of the family to make certain decisions for itself. From that point of view, if parents have good reasons for perhaps wanting to delay the point at which they would let the child know, then the birth certificate may also cut across that if it includes all of that information in the way that the Senator has outlined.

The converse of that on the other hand, in talking about the family having the right to make this decision, is that the current proposals are that none of this information will be accessible to the child or to the parents until the age of 16. These proposals take that decision away from the family and it is the State saying to families that it thinks it is not in the best interests of children to find out their full identity until the age of 16, which is a very difficult decision to stand over.

Yes, I agree completely with Professor O’Mahony on that point and I thank him for that.

I thank all our members for attending today and for engaging on what is an exceptionally important topic. I say a special thank you to Professor Conor O’Mahony, the special rapporteur on child protection from the School of Law in University College Cork for joining with us and for sharing his own legal expertise with the committee.

The joint committee adjourned at 12.17 p.m. until 9.30 a.m. on Thursday, 19 May 2022.