Surrogacy laws must safeguard against sale of children, says expert

Payment beyond cost of pregnancy could lead to exploitation, committee told

Stringent safeguards must be incorporated into any legislation governing surrogacy to ensure babies are not being bought and sold, an international expert on child exploitation has warned.

Maud de Boer-Buquicchio, former UN special rapporteur on the sale and sexual exploitation of children, told the Oireachtas Committee on International Surrogacy the only payment made to a surrogate mother by "commissioning parents" should be to cover the costs of pregnancy and birth, and these costs should be itemised.

Any payment beyond that would amount to the “sale of a child” and would be a crime under international human rights law, she said.

She told committee members, who are examining how best to legislate for surrogacy which remains unregulated here, they had “an enormous responsibility” to ensure women in poorer countries and the children they bore were not exploited.

The most effective means of doing this, she said, would be to incorporate the 2021 Verona principles, drawn up by the Geneva-based International Social Service, into legislation.

These "principles for the protection of the rights of the child born through surrogacy" are endorsed by the United Nations Committee on the Rights of the Child.

Ms de Boer-Buquicchio said any legislation should prohibit any “legally binding contractual relationships between the surrogate mother and the intending parents…where the transfer of the child is dependent on any payment.

"All states, including Ireland, must ensure that any laws that may be relevant to surrogacy are clear on the prevention on the sale of children."

Surrogate mothers must have the right to change their mind about transferring parentage after the birth, to decide they want to share parentage with them, and there should be a seven-day “reflection period” before parentage is transferred, said Ms de Boer-Buquicchio.

Birth certificate

A number of committee members expressed unease at Ms de Boer-Buquicchio’s assertion that a surrogate mother’s name should be included on the birth certificate of any baby born through surrogacy, alongside the commissioning parents’ names.

Social Democrats TD Jennifer Whitmore said: "I think there would be a risk that a publicly available birth cert that listed 'surrogate' on it, if that was made known, there could be some discrimination against the child on the basis of their origins.

Tanya Ward, chief executive of the Children's Rights Alliance, said it would be difficult to "disagree with the UN special rapporteur… She's saying it should be part of the birth certificate because it's a legal fact and it's a protection for identity."

There was an “issue with privacy” she said, but suggested a resolution could be found in recording the surrogate mother’s name on a long birth certificate, while excluding it from a short birth certificate.