Dr. Deirdre Madden:

I addressed that in my submission and it is a very serious issue in terms of the best interests of the child. The parents, as the Bill provides, are only for gestational surrogacy. We are talking about two genetic parents, people who are genetically related to the child. If they transgress the provisions of the Bill they will face potential criminal prosecution and will not be eligible to be declared the parents of the child. In circumstances where the surrogate mother wishes to relinquish custody of the child to those parents and does not want to raise the child herself, who will be regarded as the parents? Will the child end up parentless and in State care? It is a very serious issue that must be considered. This issue has been examined in other jurisdictions where payment provisions have been restricted to reasonable expenses, as they are in this Bill.

In my submission I cited a case called X and Y in which the courts were faced with two conflicting policies. On the one hand the best interests of the child should guide the court's decision regarding custody and parentage matters. On the other side there is a policy provision from the Legislature which says we do not want to have commercial surrogacy. Where there are two conflicting policies the best interests of the child must be regarded as paramount and custody be awarded to the genetic parents even though they may have transgressed the provisions of the Bill. In those jurisdictions the courts have said that only in the clearest case of abuse of the policy will they be able to withhold a parentage order, and most cases will not involve such abuse. The policy on the transgression of the payment provisions will be redundant because it would be ignored in practice.