Professor Deirdre Madden:

I thank Deputy Durkan for his question. I am satisfied from my knowledge of the court cases and legislation in the UK and contacts with academics and commentators and lawyers working there that their legislation is not fit for purpose and does not achieve what it set out to. It is being reviewed by the Law Commission there. Nevertheless, we are planning to copy that model to transfer parentage from the surrogate mother and her husband where she is married to the intended parents who are required to be genetically related between six weeks and six months after the child's birth. That is flawed for many reasons.

Putting a time constraint in place is flawed in circumstances in which parentage is not certain for the first six weeks of the child's life. While the child is in the custody of the intended parents at that time, they will not have any legal relationship. When the child is delivered in hospital, the optimal situation is that the child is handed to the intended parents who are genetically related to it. Will the hospital here allow the intended parents to leave the hospital with that child even though they do not have any legal relationship with it? In some instances in the UK, the child is handed over in the car park. A child's baby seat is handed from one car to another because the hospital will not allow the intended parents to leave the hospital with the child, even though that is what all of the parties intended. For that first six-week period, the parents looking after the child and who have custody do not have the right to consent to medical treatment or vaccinations where the child requires them.

It can be for an even longer period depending on how long it takes the parents to get to court to obtain a parental order. This is at a time in the child's life when the parents should be adjusting to their new life and family and bonding with their child rather than going through a court procedure which is unnecessary. I accept fully that there has to be some judicial oversight and regulation of the relationship, but that can take place during the pregnancy so that legal parentage is certain from the time of birth, as are responsibility for the child and commitment to it. It can happen during pregnancy, as happens in California, New Hampshire and Greece. That is a good model to follow.

On the payment issue, court cases in the UK show that the model is very unsatisfactory.

That is because it presents judges with a difficult scenario where they are faced with two different conflicting policy objectives. On the one hand, there is a policy objective in the English legislation which says that one should not pay more than reasonable expenses for surrogacy and anything more than reasonable expenses is prohibited. That is a policy the UK Parliament has set and on the other hand, all courts of course have to prioritise the best interests of the child. Consequently, faced with a situation where parents have perhaps paid more than "vouched expenses" - to use the language which is in the Bill - what is a judge to do? Is he or she supposed to adopt the policy that any payment in excess of expenses is bad and therefore these parents should not be allowed to have legal recognition of their relationship with their child or does he or she prioritise the best interests of the child? This is a child being raised by fit and loving parents, everybody is happy with the relationship and with the establishment of that family unit, including the surrogate mother and the intended parents and there are no aspersions cast on these intended parents by virtue of the fact of them going through surrogacy as that in itself is not a negative connotation. The judge will always go with the best interests of the child as courts are always obliged to do and that means that the judge is ignoring the other policy which is against commercialisation or paid surrogacy. In my view, that brings the legislation into disrepute because the law is saying that no more than reasonable expenses shall be paid but when it comes to it, the courts will always ignore that in favour of the best interests of the child, as they should and as they must. Why would we insist on putting something into the legislation that will be ineffective, that will be ignored in practice and does not serve any purpose?