Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I move amendment No. 32:

In page 57, between lines 14 and 15, to insert the following: “Best interests of the child

52. Where, in any proceedings before any court under this Part, the court, in determining whether to make an order, shall regard the best interests of the child as the paramount consideration.”.

This group of amendments concerns the issue of the best interests of the child. Neither the AHR Bill nor the Children and Family Relationships Act contains the paramountcy principle. That principle is that courts shall regard the best interests of the child as the paramount consideration. Both the Ombudsman for Children and the special rapporteur on child protection recommended that this principle be inserted into the Bill. I will quote from both their comments. The ombudsman in his report in 2022 said:

The OCO recommends that explicit provision should be made in the 2022 Bill for the best interests of the child to be treated as the paramount consideration in respect of all relevant proceedings and processes within the scope of the 2022 Bill that affect children.

The special rapporteur in 2020 said:

This legislation should provide that the best interests of the child are the first and paramount consideration for all bodies (including courts and regulatory authorities) exercising functions under the legislation.

On Committee Stage, I put forward that these amendments should be taken on board and the Minister rejected them. The Minister said at the time that "it would undermine the protections of the children we are legislating for" and "could unintentionally undermine the safeguards we are putting in place in the legislation".

Many of the Bill's safeguards, however, have nothing to do with protecting the child but, if not complied with, would result in a parental order being refused. For example, if a surrogate was 24 years old when the child was conceived or the surrogate was habitually resident for 23 months instead of 24 months before entering into a surrogacy agreement, people may not have complied with every aspect of this highly prescriptive framework, but that does not automatically mean they engaged in unethical or exploitative practices.

Subjective assessments and discretionary provisions are a cornerstone of family law. Why would these parental orders be treated differently?

I suggest these amendments relate to parental orders for international surrogacy and I would argue that the best interests of the child should be grounds for a waiver. Such a provision is not intended to undermine in any way the requirements of the Act but, as I have previously argued, to put the child's interests front and centre. I may agree with the principle underpinning the Minister's framework and safeguards, and I do not doubt his bona fides in this regard but I fear such a prescriptive system fails to recognise the unavoidable reality that children will continue to be born outside the State's criteria. While every effort should be made to comply with the framework, some flexibility is required, particularly where nothing unethical or exploitative took place.

The UN special rapporteur on the sale and sexual exploitation of children stated in 2019 that a best interests assessment is an individual case-by-case process, but what the Minister proposes is a blanket provision that does not allow for case-by-case consideration. The special rapporteur went on to recommend states should: "[d]etermine on a case-by-case basis, the substantive content with regard to the concept of the child's best interests... according to the specific situation of the child concerned, taking into account the personal context, situation and needs of the child." Similarly, in 2019 the European Court of Human Rights stated the best interests principle requires in surrogacy cases that each situation be examined in light of the circumstances of the case. It also stated the best interests principle must be assessed primarily in concreto rather than in abstracto; that is, with reference to verifiable facts rather than theory.

I cannot but note and heed what has been said by the special rapporteur, the Ombudsman for Children and the European Court of Human Rights. All of those highly respected bodies make the case that the best interests of the child should be the primary consideration in this and the way to ensure that is to ensure each child is considered on a case-by-case basis. For that reason, I will press, particularly, amendment No. 32.

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