‘Out of step’ surrogacy bill sidelines child rights

The Office of the Ombudsman for Children (OCO) says that it has asked legislators to reconsider the decision not to fully incorporate the ‘best interests of the child’ principle in the AHR bill now being debated in the Seanad.

The OCO has said that it is disappointed, under its remit to guard the rights and welfare of children, to see “gaps and deficits” in the draft legislation.

The OCO position, that ‘best interests of the child’ should be the paramount consideration in any proceedings before the courts in relation to domestic surrogacy, was not accepted by legislators.

“As currently drafted, the bill only partially incorporates the best-interests principle, which makes it out of step with existing domestic law affecting children,” the OCO stated in its observation.

Best interests

It said that the bill currently only placed children’s best interests on a par with other considerations, precluding the judiciary from making a decision that could ensure that, in every surrogacy arrangement that came before the court, a decision could be made that provided certainty for each child and placed children’s best interests at the centre.

The purpose of the ‘best interests’ principle is to ensure the full and effective enjoyment by children of the other rights they have under the UNCRC, such as the State’s obligation to protect the child.

“Though we welcome the minister’s statement on 6 March that he intends to change the bill to provide for the best interests of the child to be of paramount importance in the provisions relating to past surrogacies, the best interests of the child is a right held by every child, and its selective application in the bill would, in the OCO’s view, not be in compliance with the State’s obligations concerning the best interests of the child under article 42A.4.1° of the Constitution and the UNCRC,” the OCO said.

Retrieve information on origins

Children born through surrogacy should be able to retrieve information on their origins from the age of 12, the office said.

Children have a right to access information on their origins and to specific support in the enjoyment of these rights, it added, in particular to understand the information they were given.

Disappointment

The OCO states its disappointment with the post-birth framework for granting parentage and guardianship to the intending parents.

The bill reflects the common-law presumption that the birth mother is the mother of the child (mater semper certa est).

This leaves the child in a vulnerable position, the OCO states, since the commissioning parents have no legal rights and responsibilities towards the child, and the surrogate mother may not want to be involved.

This will give rise to challenges in determining who is responsible for decisions and consent in matters relating to the child’s health.

Committee Stage debates highlighted the lack of consensus on this and the need for further clarity on the position, as currently drafted, that the surrogate mother is the legal parent following the birth of the child.

The OCO is also concerned  about the bill’s silence on the potential effect that the criminalisation of those who engage in non-permitted surrogacy will have on the child.

It understands that a parental order cannot be applied for by the commissioning parents in respect of a child born as a result of non-permitted surrogacy.

Thus, it remains unclear what position the child is left in post-birth.

Non-permitted surrogacy

In Paradiso and Campanelli v Italy, a child was removed from his commissioning parents and placed into care as a result of their engaging in non-permitted surrogacy.

The European Court of Human Rights held that, though the child’s removal constituted an interference with the commissioning parents' right to respect for private life under article 8, the State’s interests in preventing illegality and protecting public order prevailed.

The OCO wants further clarity on the consequences for children born through non-permitted surrogacy arrangements.

Sale of children

In the Seanad debate (13 June), Senator Ronan Mullen referred to the view of Maud De Boer-Buquicchio (former UN Special Rapporteur on the sale and exploitation of children), who believes that surrogacy constitutes the sale of children.

The UN Rapporteur has said that children born through surrogacy, especially paid-for global surrogacy, are at risk of multiple human-rights violations, namely:

• Their right to an identity, including name, nationality, family relations and access to origins,
• The right to the enjoyment of the highest attainable standard of health,
• The right to not be sold.

Mullen said that the Ombudsman for Children Dr Niall Muldoon had been “shamefully absent and silent” on the “slavery” involved in international surrogacy.

Trafficking

“The bill allows for the commissioning of poor women in poor countries to provide their babies to richer individuals, financially-advantaged single people, or couples here in Ireland.

“That can only be described as a form of modern-day trafficking and slavery,” he said.

The Ombudsman for Children’s Office (OCO) today said that the rights of all children born through surrogacy should be provided for in any legislation governing it.

The OCO appeared before the Oireachtas Joint Committee on International Surrogacy on 12 May 2022, when Dr Muldoon said that the bill did not have sufficient regard to children’s rights.

The OCO, at that time, acknowledged concerns of a double standard if parental orders were granted in respect of a child born through commercial surrogacy abroad, while maintaining domestic prohibition.

Retrospective assignment

It recommended retrospective assignment of parentage and parental responsibility in both domestic and international surrogacy arrangements.

Information on the origins of children born through international surrogacy and children already born through surrogacy should be recorded, and accessible without limitations as to the child’s age, the OCO said.

Despite Committee Stage amendments approved in December 2023, the OCO said (14 June) that there were still a number of outstanding issues that had not been sufficiently addressed.

Last month, the OCO published follow-up observations to highlight the bill’s gaps in relation to the rights of children born through surrogacy.