Professor Conor O'Mahony:

I thank Deputy Funchion. I must confess to being rather taken aback by the suggestion earlier that international surrogacy does not belong in this legislation. The question I would ask is, if it does not belong here then where does it belong? My big concern, knowing how legislative programmes work, is that if this does not make it into this Bill we could be looking at a long wait before any separate Bill dealing with international surrogacy makes it back to a process such as this and that intervening period would continue the problems which we have identified around children coming to this jurisdiction where they are legal strangers to one or both parents, where citizenship is an issue and where identity is an issue. From that perspective, I am clear in my mind that a comprehensive single item of legislation that addresses everything to do with surrogacy but also donor-assisted human reproduction is the appropriate way forward to avoid the situation where it drops off the political priority list on the basis that we have just passed legislation on that and we do not need another Bill or we do not need it soon. That would be my concern.

As to how one goes about dealing with that, of course, there could be different models. Earlier today, there were comments made about how no other country has yet put in place specific tailored legislation around international surrogacy and how other countries have adapted their family laws to deal with it instead. As for taking that approach of adapting family laws rather than dealing with it in a specific legislation, first of all there are no proposals in Ireland about what that might look like. Second, that gives rise to its own difficulties. For example, adoption might be what they use in France as a means of plugging this gap but it is a very different adoption process, which, I believe, can be completed within three months.

It is very different to here, where it takes much longer.

Adoption is also unsuitable for some people due to health reasons. For example, a cancer patient who is unable to conceive due to cancer may find themselves also unable to adopt for the same reason. Equally, the proposals in my report on a specific piece of legislation also take the view that it is better to target surrogacy rather than to adapt general family law because surrogacy gives rise to issues which do not arise in a general family law situation, in particular around the right to identity.

One of the criteria in my report was about ensuring that a child's right to identity could be protected, that we have a donor who is not anonymous and that there is a record keeping situation whereby you can file details of a donor's identity and so on, and that it would be part of the process. Whereas, if we rely on general guardianship laws, for example, that would not be protected in the same way. There would be a gap in general family law that would not give that protection to the child's right to identity.

Some of the other criteria related to ensuring that the surrogate has genuinely consented - given free informed consent to the process - which can be done in a number of ways to ensure that laws governing the sale and trafficking of children are complied with. Again, those are prescribed criteria which I suggest in my report, but which would be absent from the picture if we relied on general guardianship law as the vehicle for recognising family relationships.