Dr. Lydia Bracken:

I will make a brief point about what happens if the ethical framework we strive to build for surrogacy is not adhered to. My academic view is that if we put all of this effort into building an ethical framework for surrogacy, we need to consider what happens if and when certain intended parents do not adhere to all of the elements of that framework.

In other countries, the consequence would be that people are simply not entitled to parentage in the way we have seen many families have that experience under the Children and Family Relationships Act, where the specific criteria are not met. My reading of Dr. O'Mahony’s report, which he can correct if necessary, is that by allowing for guardianship to be awarded in certain circumstances, we are giving the court more options. It is not simply a case of saying, “No parentage and go home”, but rather a case of saying, “Here are some other options.” We need to emphasise that any determination would be made in the best interests of the child. After assessing the full circumstances and whatever has happened in the surrogacy arrangement, the decision is made on the basis of the best interests of the child. The more options we can give our courts in making those determinations, the better, so it is not a case of saying, “Just go home” and saying that no legal parentage is awarded. We need to consider what we want our framework to look like but also the consequences if that framework is not adhered to.