Sir, – Rev Patrick G Burke (March 28th) suggests that Irish law should refuse to recognise the genetic children of Irish parents who have been born to surrogates in other jurisdictions.
This would in effect punish the children for the actions of their parents.
Such a policy would be both morally and legally indefensible as it would leave such children parentless and stateless, potentially stranded in their country of birth if their parents have to leave the country when their visas run out. Irrespective of the circumstances of their birth, public policy must not take precedence over the welfare of children by depriving them of their right to identity and security.
The European Court of Human Rights has held that even where a state has banned surrogacy, it cannot refuse to recognise the legal relationship between the child and its biological parent.
To do so would violate the child’s right to respect for private and family life under Article 8 of the European Convention on Human Rights.
Courts in other jurisdictions that have legislated against surrogacy have ended up having to make uncomfortable choices between enforcing such public policies and upholding the welfare of children.
Fortunately for the children, their welfare has always taken precedence, with judges finding ways to recognise their legal relationship with their genetic parents, despite the legislative prohibitions.
The same result would undoubtedly occur in any Irish court. – Yours, etc,
Prof DEIRDRE MADDEN,
School of Law,
University College Cork.