Children’s Rights review in the context of donor assisted human reproduction (DAHR) and surrogacy.

On 7th April 2021, the government published a review by Professor Conor O’Mahony, special rapporteur on child protection, of children’s rights and best interests in the context of donor-assisted human reproduction (DAHR) and surrogacy in Irish law. The report analyses the law governing parentage and the right to identity in DAHR and surrogacy from the perspective of children’s rights and best interests. The full report is available here.

The following are some of the noteworthy recommendations as part of the 51-page review:

Amendments to Children and Family Relationships Act 2015

Parts 2 and 3 of the Children and Family Relationships Act 2015 came into effect on the 4th of May 2020. These parts of the Act make provision for parentage to be allocated to intending parents of children born following DAHR procedures, subject to exceptions relating to non-clinical procedures and to some children born before the relevant legislation came into effect. Professor O’Mahony recommends that the Act should be amended to enable second parents of children born through non-clinical procedures to apply to the District Court at any time after the birth of the child for either parentage or guardianship. The review also recommends that provision should be made to allow parents to provide information on the donor to the National Donor-Conceived Person Register.

A Child’s right to receive information regarding their identity.

The review makes several recommendations in relation to a child’s right to receive information regarding their identity. The review recommends that identifying information in relation to a child’s genetic parents should be made available on request directly from the child from the age of 12 years. The review also recommends that there should be no exception to this rule permitting identifying information being withheld from the child, on the basis of a potential risk to the safety of the genetic parents. These recommendations are also made in the context of surrogacy.

A request for changes to legislation and a look across the EU.

The review highlights the fact that surrogacy is entirely unregulated in Irish law, despite the Supreme Court in Ireland calling for the Oireachtas to address this legislative vacuum in several cases that have come before it over the years.  This is an area of law which has sparked much debate and while international human rights law requires Ireland to allow for the possibility of the recognition of parent-child relationships arising from international surrogacy arrangements, neither the UN bodies nor the European Court of Human Rights have stipulated that national law must allow for domestic surrogacy arrangements. In fact, domestic surrogacy arrangements are currently prohibited in countries such as France, Germany, and Italy.

The report highlights the views of the UN Special Rapporteur on the sale and sexual exploitation of children that high levels of legal safeguards are required in this area. The report examines possible legal mechanisms that could be put in place to deal with the issue of parental rights in terms of surrogacy, such as contractual and judicial models, along with pre-conception and post-birth models. The report recommends that legislation should be introduced which incentivises domestic arrangements by introducing a less burdensome framework than that for international arrangements and does not require a genetic link between the child and at least one intending parent for example.

Conclusion

A review of this growing and evolving aspect of family law is certainly welcome.   The review highlights the fact that Ireland provided information to the Hague Conference on Private International Law to indicate that State authorities dealt with 34 international surrogacy arrangements between 2009 and 2013.  It is clear that DAHR and surrogacy are becoming more popular options for intending parents in recent years and this review report highlights the need for legislative reform of these areas from the perspective of children’s rights and best interests.

This article was written by David Taylor, Family Law Solicitor, Comyn Kelleher Tobin.