Children born through donor-assisted reproduction or surrogacy should be entitled from the age of 12 to access information about the identity of their genetic parents, the Special Rapporteur on Child Protection, Prof Conor O’Mahony, has advised the Government.
He has also called for legislation recognising both domestic and international surrogacy to be enacted as soon as possible. Such legislation should “incentivise” reliance on domestic arrangements for surrogacy, “by adopting a more streamlined and less burdensome framework than for international arrangements”.
These are among 27 recommendations in A Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law, which is due to be published by the Government shortly.
Currently, under the Children and Family Relationships Act 2015, those born through donor-assisted reproduction must wait until they turn 18 before they can directly request identifying information on their genetic parents. This information should be available to parents at any point after the child’s birth, says Prof O’Mahony in the review, so that they can share it with the child if they so wish.
But after the age of 12 a child should be entitled to apply independently for this information, “even if the parents don’t go along with it”, he told The Irish Times. He acknowledged that some would argue such a right should be dealt with on the basis of maturity rather than a numerical age, as some other countries did.
“My view was that the maturity assessment was, in many ways, placing another barrier in the way of the child. While the age of 12 is a little bit arbitrary, at least it has the benefit of clarity in the sense that after the age of 12 the child doesn’t have to jump through any more hoops.”
This was all in tandem, he said, with recommendations that the system should be set up to encourage the parents to disclose this information before the age of 12 because all the research indicated that the earlier the child found out, the more settled they were in their identity later on.
“If somebody goes and orders anonymous sperm on the internet and administers it at home, the law simply can’t stop that,” he acknowledged. “What the law can do is provide very strong incentives to go through the preferable route.
“The right to identity is legally binding on the State. We know from all the adoption debates going on lately how important it is, so the law should be set up to try to protect it as far as possible. At the same time there is a reality that some things are beyond the reach of the law.”
No exceptions should be made to allow withholding of information about genetic parents or surrogates on the basis of a potential risk to the safety of the genetic parents or surrogates, “since adequate provision is made in criminal law to address any such risk”.
Lack of recognition
There is no recognition of surrogacy under Irish law as it stands. Initial drafting of the long-awaited Assisted Human Reproduction Bill in 2017 did cover altruistic domestic surrogacy but made no provisions for children born through international surrogacy.
Prof O’Mahony’s review recommends that legislation for domestic surrogacy should allow for altruistic surrogacy only, with detailed provisions governing the payment of reasonable expenses but a ban on fees.
There should be no requirement that domestic surrogacy arrangements involve a genetic link between the child and at least one intending parent, he says. However, such a requirement should be applied for the recognition of international surrogacy arrangements “to act as a safeguard against the sale and trafficking of children”.
The review also calls for retrospective action in providing a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation.
Prof O’Mahony’s recommendations come after the Minister for Children and Youth Affairs requested, in June 2020, a review of children’s rights and best interests in the context of parentage in cases of donor-assisted human reproduction, including surrogacy.