The Irish Presidency of the Council of the European Union was launched this week in Dublin. Accompanying the launch is a detailed Policy Programme 68 pages long. The document provides interesting insights into what are otherwise often labyrinthine channels of navigating EU decision making and priorities.

The EU’s – and especially Ireland’s – support for the accession of Ukraine to the Union is spelled out clearly. As is Ireland’s support for the ‘full integration of Ukraine into EU defence initiatives with the same access as EU Member States’. What this means in practice, I do not know.

But deep in the document, one of Ireland’s priorities is to “progress the proposed Regulation on the Recognition of Parenthood”. What is this regulation? It is a proposal to ensure that if a parent-child relationship is legally established in one European Union member state, it is recognized across all other member states.

It sounds reasonable. Equal rights and equal protection of all children across the EU is a specific priority. What the regulation proposes is that if one country recognises parenthood of a child – whatever type of parenthood that may be – then all other countries are obliged to recognise that parenthood?

Most specifically, the proposed regulation requires that parenthood established through surrogacy be also recognised across the EU if it is recognised in one country. Currently only Ireland, Cyprus, Greece and Portugal allow surrogacy to take place. The EU in other places has condemned surrogacy for exploiting women and children. Yet the regulation would require all 23 other EU countries to recognise parenthood established in those four countries.

Defenders of the regulation argue that it does not require those 23 countries to change their laws in relation to surrogacy, merely to recognise a relationship established elsewhere, to give equal rights to those children already in existence.

Critics see the regulation as a potential trojan horse that will be supported by advocates, judicial activism and legal challenges across the European legal system that will undermine national sovereignty in this area.

As was the case in Ireland, the lack of regulation created a situation where people were travelling to places such as Ukraine to acquire children using surrogates and then being used as hard cases where the law did not recognise the ‘parenthood’ of those children. There was a legal vacuum of sorts and these sad cases where used to establish the emotional arguments that resulted in dissenters, such as Senator Sharon Keogan, being shouted down and accused of all sorts.

Forgotten in the discussions were the women whose bodies had been bought, the babies who were discarded as unwanted. These hard cases did not influence the law.

The same risk now exists with the proposed European regulation. Children will be born to surrogates outside of Europe, returned to countries where surrogacy is illegal, and these children will be cited as having the same rights as all other children in the EU. It will be argued that if a child born to a surrogate in Ireland has an established parenthood relationship with the person or persons who engaged in the surrogacy transaction, then the child in, say, Italy, under the principle of equal rights, ought to have the same right to parenthood.

The reality is that it will not be the children that will be claiming rights, but individuals, or groups of individuals, who travel outside the EU, to 3rd countries to carry out an act extra-judicially, that will be claiming a right of parenthood over a child with no biological connection to them, doing something that the EU has previously condemned as exploitative of women.

As Ireland is one of the few countries that has legislated for surrogacy, it has an interest in progressing this regulation across the member states. Currently, as an outlier, recently approving something that the majority of the countries across the EU consider to be unethical, unjust and exploitative, the regulation offers the chance for Ireland to establish surrogacy.

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