The Government should explain what will happen to children whose parents break the law by entering into a commercial surrogacy deal, the Children's Ombudsman has said.
In her advice to the Minister for Justice on a far-reaching draft law on surrogacy and adoption, Ombudsman Emily Logan said that categorically ruling out the possibility of granting a declaration of parentage in such situations could have the effect of leaving children stateless.
The Child and Family Relationships Bill, which will also permit adoption by same-sex partners, makes it an offence to make or receive any payment in relation to a surrogacy arrangement, other than the birth mother’s reasonable expenses.
The general scheme of the Bill, published in February, states that where the offence is committed, the courts are precluded from making a declaration of parentage. In her observations, however, the Ombudsman said it was not clear who else might be appointed as a guardian for the child, how the denial of parentage would affect the citizenship of the child and whether the child would be left in the care of those who had entered into the surrogacy deal.
She called for “as much clarity as possible, rather than leaving it to the courts to determine what will happen to children of Irish citizens or residents who enter into surrogacy arrangements in other jurisdictions.”
Ms Logan acknowledged that maintaining the integrity of the ban on commercial surrogacy was entirely legitimate, and that de facto routine recognition of commercial surrogacy arrangements based on the interests of individual children would undermine the ban.
However, categorically excluding the possibility of making a declaration of parentage would have “immediate and very grave consequences” for a child born as a result of commercial surrogacy.
She said: “If legal recognition of filiation with an Irish citizen parent is denied, it is not clear how the child could be granted Irish citizenship and consular protection. As the child may well be regarded as an Irish citizen by the state in which he/she was born, this could therefore have the effect of leaving the child stateless.”
The Ombudsman advised Government to consider eschewing “the extremes of effectively removing the sanction for entering into commercial surrogacy arrangements and of leaving children born from such arrangements in a situation of great legal uncertainty and vulnerability.”
She said that balance could be struck by retaining the criminal sanction for those who enter into commercial surrogacy deals but allowing for a declaration of parentage to be made under certain circumstances.
She suggested that a court could have regard to a range of factors, including the extent to which any payments exceeded “reasonable expenses”; whether any contravention of the legislation was inadvertent; and whether any alternatives to making the declaration of parentage would be in the child’s best interests.
Separately, the Ombudsman recommended that people born through assisted reproduction and surrogacy should have a right to access information on their birth and origins.
