I am a Lecturer in Law (Above the Bar) at the School of Law, NUI Galway.
I lecture in the areas of Family Law, Equity and Tort. My research interests include sexuality and the law, donor-assisted human reproduction and surrogacy, children's rights, equitable remedies and sports-related concussion and the law. See http://www.nuigalway.ie/business-public-policy-law/school-of-law/staff/briantobin/
This article critiques the complex hybrid model that has been proposed for regulating domestic su... more This article critiques the complex hybrid model that has been proposed for regulating domestic surrogacy arrangements in Ireland, and the reasons why this model came about. It proposes an alternative model for regulating surrogacy, one that is in operation elsewhere and achieves a better balance between the rights of the surrogate, the intending parents and, most importantly, the surrogate-born child. The proposed establishment of the National Surrogacy Register, its interaction with the Register of Births and the issuing of 'surrogacy certificates' is also analysed, and a far less complex means of respecting the surrogate-born child's right to knowledge of its identity is proposed. The article concludes that Ireland's current legislative proposals for regulating surrogacy need to be substantially revised before ever being placed on the statute book. In their present form, they are so restrictive that, rather than facilitating domestic surrogacy arrangements, they are far more likely to discourage them.
The Children and Family Relationships (Amendment) Act 2018 was passed by the Houses of the Oireac... more The Children and Family Relationships (Amendment) Act 2018 was passed by the Houses of the Oireachtas and signed into law by the President of Ireland in July 2018. The purpose of this legislation is to enable the commencement later this year of Pts 2 and 3 of the Children and Family Relationships Act 2015 (the "2015 Act"). This short piece of amending legislation does so by correcting a minute number of minor technical errors contained in the 2015 Act. However, once commenced, Pts 2 and 3 of the 2015 Act will only prospectively encompass donor-assisted human reproduction (DAHR) that takes place in a clinical setting in Ireland. DAHR that occurs by means of "home insemination" with sperm from a known donor is not covered under Pts 2 and 3 of the 2015 Act. This article will explore the rationale for excluding this method of DAHR from the 2015 Act, and will endeavour to propose a viable method of regulating "home insemination" via future legislation.
Keywords: Surrogacy – consent – pre-birth model – post-birth model – Constitution of Ireland – ch... more Keywords: Surrogacy – consent – pre-birth model – post-birth model – Constitution of Ireland – children's rights In 2014, the Irish Parliament proposed surrogacy legislation as part of a larger Bill regulating donor-assisted human reproduction, adoption and family relationships, but the controversial provisions were deleted before the Bill became an Act. This paper will argue that this was a necessary move because the surrogacy proposals mirrored the existing UK legislation in this area; this could have resulted in their being susceptible to constitutional challenge in Ireland, if enacted. A cornerstone of the UK legislation, as illustrated by the recent case of Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam), is that the gestational surrogate can remain the legal parent of the child if she refuses to consent to a parental order in favour of the intended parents. However, a similar statutory dispensation in Ireland in favour of a gestational surrogate would most likely find itself under a constitutional spotlight if an analogous case of conflict came before the Irish courts. It will be argued that such a provision would most likely be contrary to Article 42A, the Children's Amendment that was recently inserted into the Irish Constitution, as well as the constitutional protection of the marital family contained in Article 41. In light of this, the paper will conclude by recommending an alternative, more child-centric and constitutionally compliant model for the regulation of surrogacy in Ireland.
The recent UK case of Re AB (Surrogacy: Consent) 1 illustrates how the " post-birth parental orde... more The recent UK case of Re AB (Surrogacy: Consent) 1 illustrates how the " post-birth parental order " model of regulating surrogacy arrangements can lead to an outcome that is contrary to the best interests of surrogate-born children. This article will critically analyse the " post-birth parental order " model in light of the decision in Re AB (Surrogacy: Consent) and assess its potential non-compliance with Arts 41 and 42A of the Constitution if it is introduced via legislation in this jurisdiction. The article will conclude by recommending a viable alternative legislative framework for the future regulation of surrogacy in Ireland that would provide greater legal certainty for surrogate-born children from the moment of birth. The Post-birth Parental Order Model of Surrogacy Regulation This model operates in the UK and provides that, upon birth, the surrogate is recognised as the legal mother and guardian of the child. It involves court proceedings following the birth of the child in order for the couple who commissioned the surrogacy arrangement to become the child's legal parents and guardians. 2 The " commissioning couple " may be spouses, civil partners or two persons who are living as partners in an " enduring family relationship ". 3 To acquire the status of legal parents the commissioning couple or " intended parents " must apply to the court for a Parental Order and the surrogate must consent to the making of this order. Section 54(7) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) allows the surrogate a " cooling-off " period by providing that she can only consent to the making of such an order no less than six weeks after the child's birth. If the surrogate refuses to consent to the making of a Parental Order then she will remain the child's legal mother and guardian, irrespective of what was agreed between the parties. 4 The recent case of Re AB (Surrogacy: Consent) starkly illustrates how this blanket statutory dispensation in favour of a gestational surrogate 5 allows her to act irrationally and in a manner that is clearly contrary to the best interests of surrogate-born children. Re AB (Surrogacy: Consent) A and B were twins born via an altruistic 6 gestational surrogacy arrangement in the UK. They had lived with the applicants, their genetic, married parents, since the day following their birth and were " thriving " 7 in their care. A and B had no contact with the respondents, the surrogate and her husband, and the respondents had also made it clear that they wished to play no active role in the children's lives. Nonetheless, the respondents refused to consent to the making of a Parental Order in favour of the applicants. Theis J. observed that s.54(6) of the HFEA 2008 states that if the respondents' consent is not forthcoming, the court cannot proceed to make a parental order in favour of the genetic parents. Theis J. noted that the respondents' rationale for refusing their consent was " due to their own feelings of injustice, rather than what is in the children's best interests. " 8 The relationship between the applicants and the respondents had broken down during the pregnancy. The catalyst appeared to have been an appointment at the time of the 12-week scan when the consultant obstetrician expressed very real concerns about the surrogate's health if the pregnancy continued. Although the pregnancy continued, the surrogate felt that the applicants did not show sufficient concern for her wellbeing during this period. Theis J. observed Page1
Since 2012, the European Court of Human Rights has handed down judgment in two significant cases ... more Since 2012, the European Court of Human Rights has handed down judgment in two significant cases concerning same-sex couples and second-parent adoption—Gas and Dubois v France and X v Austria. The Court's approach in the former case was inconsistent with its earlier pronouncement in Burden v United Kingdom, qualitatively equating marriage and civil partnership and its more relaxed attitude to adoption by unmarried couples as evinced in Emonet v Switzerland. Although the Court tried to taper its positive conclusion in the latter case as being confined to a narrow issue of discrimination as between unmarried opposite-sex and same-sex couples, it nonetheless engaged in a robust art.14 analysis which sends out a strong signal to Member States that they will have a heavy onus to discharge when seeking to justify sexual orientation discrimination in the contexts of adoption and parental rights, and the Court ultimately endorsed a situation where a child can have two legal parents of the same sex.
This article critiques the complex hybrid model that has been proposed for regulating domestic su... more This article critiques the complex hybrid model that has been proposed for regulating domestic surrogacy arrangements in Ireland, and the reasons why this model came about. It proposes an alternative model for regulating surrogacy, one that is in operation elsewhere and achieves a better balance between the rights of the surrogate, the intending parents and, most importantly, the surrogate-born child. The proposed establishment of the National Surrogacy Register, its interaction with the Register of Births and the issuing of 'surrogacy certificates' is also analysed, and a far less complex means of respecting the surrogate-born child's right to knowledge of its identity is proposed. The article concludes that Ireland's current legislative proposals for regulating surrogacy need to be substantially revised before ever being placed on the statute book. In their present form, they are so restrictive that, rather than facilitating domestic surrogacy arrangements, they are far more likely to discourage them.
The Children and Family Relationships (Amendment) Act 2018 was passed by the Houses of the Oireac... more The Children and Family Relationships (Amendment) Act 2018 was passed by the Houses of the Oireachtas and signed into law by the President of Ireland in July 2018. The purpose of this legislation is to enable the commencement later this year of Pts 2 and 3 of the Children and Family Relationships Act 2015 (the "2015 Act"). This short piece of amending legislation does so by correcting a minute number of minor technical errors contained in the 2015 Act. However, once commenced, Pts 2 and 3 of the 2015 Act will only prospectively encompass donor-assisted human reproduction (DAHR) that takes place in a clinical setting in Ireland. DAHR that occurs by means of "home insemination" with sperm from a known donor is not covered under Pts 2 and 3 of the 2015 Act. This article will explore the rationale for excluding this method of DAHR from the 2015 Act, and will endeavour to propose a viable method of regulating "home insemination" via future legislation.
Keywords: Surrogacy – consent – pre-birth model – post-birth model – Constitution of Ireland – ch... more Keywords: Surrogacy – consent – pre-birth model – post-birth model – Constitution of Ireland – children's rights In 2014, the Irish Parliament proposed surrogacy legislation as part of a larger Bill regulating donor-assisted human reproduction, adoption and family relationships, but the controversial provisions were deleted before the Bill became an Act. This paper will argue that this was a necessary move because the surrogacy proposals mirrored the existing UK legislation in this area; this could have resulted in their being susceptible to constitutional challenge in Ireland, if enacted. A cornerstone of the UK legislation, as illustrated by the recent case of Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam), is that the gestational surrogate can remain the legal parent of the child if she refuses to consent to a parental order in favour of the intended parents. However, a similar statutory dispensation in Ireland in favour of a gestational surrogate would most likely find itself under a constitutional spotlight if an analogous case of conflict came before the Irish courts. It will be argued that such a provision would most likely be contrary to Article 42A, the Children's Amendment that was recently inserted into the Irish Constitution, as well as the constitutional protection of the marital family contained in Article 41. In light of this, the paper will conclude by recommending an alternative, more child-centric and constitutionally compliant model for the regulation of surrogacy in Ireland.
The recent UK case of Re AB (Surrogacy: Consent) 1 illustrates how the " post-birth parental orde... more The recent UK case of Re AB (Surrogacy: Consent) 1 illustrates how the " post-birth parental order " model of regulating surrogacy arrangements can lead to an outcome that is contrary to the best interests of surrogate-born children. This article will critically analyse the " post-birth parental order " model in light of the decision in Re AB (Surrogacy: Consent) and assess its potential non-compliance with Arts 41 and 42A of the Constitution if it is introduced via legislation in this jurisdiction. The article will conclude by recommending a viable alternative legislative framework for the future regulation of surrogacy in Ireland that would provide greater legal certainty for surrogate-born children from the moment of birth. The Post-birth Parental Order Model of Surrogacy Regulation This model operates in the UK and provides that, upon birth, the surrogate is recognised as the legal mother and guardian of the child. It involves court proceedings following the birth of the child in order for the couple who commissioned the surrogacy arrangement to become the child's legal parents and guardians. 2 The " commissioning couple " may be spouses, civil partners or two persons who are living as partners in an " enduring family relationship ". 3 To acquire the status of legal parents the commissioning couple or " intended parents " must apply to the court for a Parental Order and the surrogate must consent to the making of this order. Section 54(7) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) allows the surrogate a " cooling-off " period by providing that she can only consent to the making of such an order no less than six weeks after the child's birth. If the surrogate refuses to consent to the making of a Parental Order then she will remain the child's legal mother and guardian, irrespective of what was agreed between the parties. 4 The recent case of Re AB (Surrogacy: Consent) starkly illustrates how this blanket statutory dispensation in favour of a gestational surrogate 5 allows her to act irrationally and in a manner that is clearly contrary to the best interests of surrogate-born children. Re AB (Surrogacy: Consent) A and B were twins born via an altruistic 6 gestational surrogacy arrangement in the UK. They had lived with the applicants, their genetic, married parents, since the day following their birth and were " thriving " 7 in their care. A and B had no contact with the respondents, the surrogate and her husband, and the respondents had also made it clear that they wished to play no active role in the children's lives. Nonetheless, the respondents refused to consent to the making of a Parental Order in favour of the applicants. Theis J. observed that s.54(6) of the HFEA 2008 states that if the respondents' consent is not forthcoming, the court cannot proceed to make a parental order in favour of the genetic parents. Theis J. noted that the respondents' rationale for refusing their consent was " due to their own feelings of injustice, rather than what is in the children's best interests. " 8 The relationship between the applicants and the respondents had broken down during the pregnancy. The catalyst appeared to have been an appointment at the time of the 12-week scan when the consultant obstetrician expressed very real concerns about the surrogate's health if the pregnancy continued. Although the pregnancy continued, the surrogate felt that the applicants did not show sufficient concern for her wellbeing during this period. Theis J. observed Page1
Since 2012, the European Court of Human Rights has handed down judgment in two significant cases ... more Since 2012, the European Court of Human Rights has handed down judgment in two significant cases concerning same-sex couples and second-parent adoption—Gas and Dubois v France and X v Austria. The Court's approach in the former case was inconsistent with its earlier pronouncement in Burden v United Kingdom, qualitatively equating marriage and civil partnership and its more relaxed attitude to adoption by unmarried couples as evinced in Emonet v Switzerland. Although the Court tried to taper its positive conclusion in the latter case as being confined to a narrow issue of discrimination as between unmarried opposite-sex and same-sex couples, it nonetheless engaged in a robust art.14 analysis which sends out a strong signal to Member States that they will have a heavy onus to discharge when seeking to justify sexual orientation discrimination in the contexts of adoption and parental rights, and the Court ultimately endorsed a situation where a child can have two legal parents of the same sex.
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The purpose of this legislation is to enable the commencement later this year of Pts 2 and 3 of the Children and Family Relationships Act 2015 (the "2015 Act").
This short piece of amending legislation does so by correcting a minute number of minor technical errors contained in the 2015 Act. However, once commenced, Pts 2 and 3 of the 2015 Act will only prospectively encompass donor-assisted human reproduction (DAHR) that takes place in a clinical setting in Ireland. DAHR that occurs by means of
"home insemination" with sperm from a known donor is not covered under Pts 2 and 3 of the 2015 Act. This article will explore the rationale for excluding this method of DAHR from the 2015 Act, and will endeavour to propose a viable method of regulating "home insemination" via future legislation.
The purpose of this legislation is to enable the commencement later this year of Pts 2 and 3 of the Children and Family Relationships Act 2015 (the "2015 Act").
This short piece of amending legislation does so by correcting a minute number of minor technical errors contained in the 2015 Act. However, once commenced, Pts 2 and 3 of the 2015 Act will only prospectively encompass donor-assisted human reproduction (DAHR) that takes place in a clinical setting in Ireland. DAHR that occurs by means of
"home insemination" with sperm from a known donor is not covered under Pts 2 and 3 of the 2015 Act. This article will explore the rationale for excluding this method of DAHR from the 2015 Act, and will endeavour to propose a viable method of regulating "home insemination" via future legislation.