Committee urged not to rush decisions on surrogacy law

The three-month timeline for the Oireachtas Committee on International Surrogacy to consider and make recommendations on measures to address the issue is too short, Government Special Rapporteur on Child Protection Prof Conor O'Mahony has said.

“The committee has been given a bit of a steep hill to climb to get through all of this in three months,” he told the committee on Thursday.

The committee held its first meeting on April 7th.

The target of completing work by the committee on the relevant Assisted Human Reproduction Bill, leading to legislation on surrogacy, was “very, very tight and is, in some senses, arbitrary”, Prof O’Mahony said.

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"Whatever we enact is going to regulate surrogacy in Ireland for a generation," he said, "so I would be of the view that it would be much better for it to take another six months, or 12 months if necessary, to get it right."

He “would rather see this Bill coming back around next year than being enacted in its current form”.

Earlier, Prof O’Mahony was critical of an Issues Paper presented to the Committee on April 7th by officials from the Departments of Health, Justice, and Children. It raised concerns about recommendations he had made in a December 2020 report, titled A Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law.

It was “a matter of some regret that the three Government Departments did not contact me following the submission of my report to raise these concerns and afford an opportunity for them to be discussed further and worked through”, he said.

It was also “regrettable” the Issues Paper was not provided to him in advance of the April 7th hearing as that made it impossible for him to address its content at the same hearing.

The officials’ concerns about his recommendations were “based on an incomplete understanding of the recommendations and the associated legal landscape, and are beset by logical inconsistencies”, he said.

His “considered view” was that the Issues Paper failed to provide any convincing reasons for rejecting recommendations in his 2020 report. It remained his “firm view” that the Government’s proposals would result in legislation “which is contrary to Ireland’s commitments with respect to the right to family life, the right to identity, the best interests principle and the principle of non-discrimination”.

Children’s rights

Ombudsman for Children Dr Niall Muldoon told the committee his office was of the view that the Assisted Human Reproduction Bill "as it stands does not have sufficient regard to children's rights, and that a number of issues need to be considered further in order to ensure the Bill is child-centred and rights-based".

He was concerned “about the absence of provision in the Bill for children born through international surrogacy and the Bill’s silence as regards children already born through a domestic or international surrogacy arrangement”.

Excluding a recognition of “the relationship between a child born through international surrogacy and their intending parents will have immediate and grave consequences for the child, and is contrary to the CRC [UN Convention on the Rights of the Child] and the European Convention on Human Rights”, he said.

His office recommended “that the Bill explicitly provides that all decisions made in relation to a surrogacy arrangement that affect the child must have regard to the best interests of the child as the paramount consideration”.

They welcomed provisions in the Bill “for the recording of information relating to the origins of children born through domestic surrogacy on a National Surrogacy Register and that it allows children aged 16 and 17 to apply to obtain such information”, he said.