It is real honour and a privilege to address the committee today. In 2012, when I practised as a barrister, a case came my way where a person wanted to have recognition of the birth of a child where the commissioning mother, a married woman, did not have the genetic material to carry a child herself. A family member who had always known this was the case offered, when her own family was complete, to carry a child for her. I became involved in this case which was a purely altruistic surrogacy situation within a family in the State where all were habitually resident. It was a very human story requiring a bit of humanity.
The difficulty arose when the child was born. The registrar of births was not willing to have the commissioning mother named as mother on the birth certificate. These are awfully serious documents. There was an insistence at that level that the person named on the certificate would be the lady who kindly carried the child or children. In the meantime, an application was made on her behalf to the High Court for recognition of the commissioning mother as mother.
Before we brought that case, we looked very carefully at that type of situation internationally and did a comparative analysis. We examined everything we could find. We ran the case on fairly tight constitutional lines because that was where the law was that applied to Ireland and such a situation. We were successful in the High Court. I had the great honour to be appointed to the Bench between that judgment and the appeal, although I hasten to add that is not why we were not successful in the Supreme Court. The then Chief Justice, Ms Justice Susan Denham said that you cannot expect courts to legislate. The old maxim was whoever births the child is the mother. There is a Latin phrase for that. At the time, our present Chief Justice, Mr. Justice Donal O’Donnell, in one of the judgments noted that there would have to be legislation but you cannot expect a court to legislate; it is over to the Oireachtas.
During the awful lockdown, when I was at home wondering how I would earn my keep as a High Court judge, I decided to spend a few weeks working on the basic document that I submitted to the committee, "A Snapshot of Surrogacy in Ireland with a Comparative look at International Practices". I owe thanks to the help of two young judicial assistants, Ms Katie Winder LLB and Ms Chloe O'Reilly LLB, who are acknowledged in the authorship. The younger they come up, the more brilliant they are. I say that very generously to them. I also wish to acknowledge Ms Annette Hickey who has really been a flag bearer for parents in this area who have a fertility difficulty. In the article, I mention the legal definition of infertility as where people have tried to have a child for 12 months, having unprotected sexual intercourse, but cannot. It is seen as a medical problem. Then we look at the treatment.
When I came to the end of the article I was far too timorous to come out and say let us look at commercial surrogacy internationally. However, in preparing for my opening statement I had the great delight of spending the bank holiday weekend examining in detail the very excellent work of Dr. Conor O'Mahony and I came to the conclusion that he is right. He has brought me a further step or two on this journey. If we were just to go with an altruistic model in Ireland, we are a tiny collection of counties so what would we have? We would have very few cases occurring where there would be the use of a surrogate, family member, friend or perhaps even someone one did not know but in a tiny country that is quite difficult and perhaps unrealistic. I have also my own knowledge of these cases, through living and knowing people who have gone on this journey abroad and have had terrible difficulties. I commend the Department of Foreign Affairs, the Minister, Deputy Coveney and the Government because it is quite clear that from the initiation of this process great care has been taken to protect children born abroad and to try in an ad hoc way to come to solutions.
However, there are children who are completely unregulated. That is not correct. It should not be the way. Some of them are at least ten years old. They must be regulated and brought into a scheme. They are the children of an international surrogacy arrangement.
This brings me to the work of Professor Conor O’Mahony, who mentions the European Convention on Human Rights and a French case, Mennesson v. France, 65192/11. The individual rights of children are paramount, and we had a constitutional referendum when Ms Frances Fitzgerald was the Minister responsible for children. I heralded that as a great development. First and foremost, our children are our future as a country. The European court clarified what is meant by the statement that the interests of the children being paramount. It states the reference is to the interests of the individual child. The United Nations and the European court have set the minimum obligation towards the child and have stressed that a lack of regulation causes a risk to children. Articles 7 and 8 of the European Convention on Human Rights are offended by a risk of statelessness in certain cases. I have come across that type of situation.
Professor O’Mahony recommends amending the Child and Family Relationships Act 2015 to legislate in the best interest of the child as a matter of paramount importance. The legislation may already achieve that. That said, Professor O’Mahony advocates the streamlining of domestic surrogacy arrangements and the encouragement of domestic arrangements where at all possible. He suggests the front-loading of orders prior to the beginning of the conception process. It could be done through a regulatory framework or through preparation in accordance with what an authority would set out as the checklist, and then by going to court, even. That might be preferable in the early years of such a system.
Professor O’Mahony suggests that a preconception order would relieve the surrogate of parental responsibility on the birth of the child. In other words, there would be no tussle at birth, which has happened. I have cited some of the cases where it has. There would be no lack of clarity. Parental responsibility would lie with the commissioning parents from the moment of birth. Professor O’Mahony concludes that the trend internationally is to regulate international surrogacy carefully rather than banning it outright. He says the aim of regulating both domestic and international surrogacy is to give as much protection as possible for the rights of all concerned.
With all the study involved to appear here today, I found there is an aspect on which I have changed my position. To date, we have clung to a genetic link with the child as a protection. Professor O’Mahony says there is no genetic link necessary in California in the United States, Ontario and British Columbia in Canada, and Victoria in Australia. He states that according to a child’s rights analysis, this favours allowing for the recognition of surrogacy arrangements in the absence of a genetic link to either intending parent. He says the right to the recognition of a family relationship is not dependent on a genetic link in terms of biological, adoptive, foster or extended family norms. In other words, he looks across the board and says the link is not necessary in all circumstances. It is preferable and ideal if it exists.
On consulting the voice of the child, the Australian model is supported by the Irish Human Rights and Equality Commission, which states 14 years is the correct time to tell a child about a surrogacy if that child is sufficiently mature. Professor O’Mahony suggests 12 as the appropriate age. I believe it should be around those ages, depending on the maturity of the child. It is a matter to be assessed with good professional advice. It may not be necessary to get that advice in every case because children ask a hundred questions an hour, meaning one may be asked much earlier in a child’s life.
It is recommended that international surrogacy issues be dealt with in the High Court because nationality, citizenship and parental order rights come into play. It is suggested that the orders be sought before the birth. I suggest that the case be fast-tracked within six weeks after the birth of the child. Professor O’Mahony suggests doing away with the requirement for the child to have a genetic link but recommends keeping it as a condition for the recognition of international surrogacy to protect against trafficking. I would not keep the genetic link because I have seen the reality whereby, through a mix-up in a clinic, it cannot be proven or has no evidence to support its existence. The Department of Foreign Affairs or other bodies may have to tear their hair out to give a right-to-travel document to get a child home but there is a huge issue in this regard. Let us face it: we cannot regulate internationally. What I would say about this area is that we should pick the best aspects from various countries. We should not feel we have to have all aspects from one country. Ukraine, for example, has proven to be a very effective place for Irish people in international surrogacy terms. Sadly, it now has a war on its hands, but it was regarded by me and others as having a highly developed clinic system for surrogacy and a highly qualified group of lawyers specialising in this area. Therefore, the process was fairly seamless and much less expensive than in some other countries. However, Ukraine allows only heterosexual unions. Therefore, that has to be considered.
I did a lot of work on child abduction in my time. In fact, it was a large part of my junior practice. I also did this work as a judge. For that work, we have what we call the Hague convention on international child abduction, to which many countries have signed up. Under the convention, if a child is taken inappropriately from one country, he or she can be got back. There is a seamless, expeditious system for doing so. There is no international convention yet for surrogacy. I suggest it would be ideal to have it come quickly, from whatever body, be it in the Hague or Geneva. The reality, however, is that Ireland can enter bilateral agreements with other countries to start off the process here. There can be an agreed checklist.
Let me refer to the Adoption Act 2010 and the Article 14 or 15 certificate. The country abroad gives a verified piece of paper stating it is appropriate for the child to travel to Ireland to be adopted. There could be something similar in respect of surrogacy. With surrogacy, I would hate to see a slow-moving assessment and system for people who want to have their babies, because time is of the essence. The reason fertility rates have gone down is that, in many cases, people start their families much later.
People are more educated. Women are encouraged to go to university and to have a career. Therefore, they may be in their mid-30s before they realise they cannot have a child.
The last thing one wants is a situation where they have to go through a cumbersome process. Whatever system is adopted, please let it be highly efficient. I would say if one has a pre-conception assessment of the intending parents, why would such an authority not employ specifically for its use a couple of social workers, guardians ad litem, psychologists or that type of person to assess the intended parents so that it is seamless and quick?
I have a strong view about court delays. My view is, if one comes back with one's baby, one has one's pre-conception order and one kicks one's case off to go into the High Court list. I suggest it should be the High Court. The High Court, in the past three or four years, would have dealt with approximately 300 of these cases. The people there know the territory. They are experienced and are willing. One would have a system then where within six weeks of the birth one would be back in with one's final orders being sought. It would be seamlessl and efficient.
I wish the committee all the very best. If I can help in any way, I would be delighted. I thank all the members.
