Professor Deirdre Madden:

The situation with surrogacy in Ireland is that we do not have any legislation which deals with it. It is a complete legal limbo for couples. As I understand the matter, Irish clinics do not generally provide surrogacy services. There were one or two cases in the past. One, the MR & Anor v. An tArd Chláraitheoir & Ors case, ended up before the Supreme Court a few years ago. That was about a birth registration issue. As a result, most couples who seek surrogacy go abroad to avail of the service. The issue then arises as to how those couples can regularise their legal relationship with their children when they bring them back to this jurisdiction. Some countries are easier in that regard than others. Couples I have spoken to in Ireland who have gone to the United States, to California for example, have found it fairly easy to avail of the legal process there because they are regarded and registered as the legal parents of the child. The couple goes to the Irish embassy, obtains travel documentation and an Irish passport for the child and then they can bring him or her back here. The process is fairly easy for them. For others who go to other parts of the world, such as India, until relatively recently at least, the Ukraine, Mexico, Nepal and places like that, the process can be more difficult because there can be a conflict of laws problem.

Irish law takes the view that the woman who gives birth to the child is the legal mother and must be registered, whereas in some jurisdictions where surrogacy is allowed it is not the birth mother who is regarded as the legal mother but the intended mother. Those are two different conflicting legal frameworks and the problem then arises as to what happens in that clash. Who is the legal mother? There have been examples in English case law involving children born in other jurisdictions where that conflict of laws problem has arisen. In the Ukraine, for example, the intended parents would be regarded as the legal parents but in the UK the surrogate mother would be regarded as the legal parent. There have been difficulties in that context with getting travel documentation and passports, bringing the child back into the jurisdiction and going through a court procedure to regulation the situation.

That is an extremely stressful and anxiety-ridden time for parents and probably not in the best interests of the child. I say that without the expertise of Professor Hayes. That is the situation we are in now. This Bill proposes a situation where there would be pre-authorisation of the surrogacy arrangement by the regulatory authority in Ireland but the legal transfer of parentage would not take place until between six weeks and six months after the child's birth. That goes back to the point I was making earlier about that not being in best interests of the child. From my perspective, that transfer of parentage should take place before the child is born so that there is legal certainty from the moment of birth. That child might need medical intervention or surgery but without that transfer, the intended parents looking after that child will not be able to sign a consent form. The Bill should definitely address those issues as well as the issue of bringing children back into the jurisdiction who are born to Irish parents abroad and it should regularise their legal relationship.