Professor Conor O'Mahony:

I will make a quick point about a matter that has arisen in a couple of the recent contributions. I refer to the question of how will recognition be given to surrogacy arrangements that have already happened. In my report there are recommendations that we have been discussing about that question of needing to have the identity aspect covered in order to qualify for full parentage. On page 43 of my report it is specified that that would not be a requirement for the retrospective cases simply because people would not have known it at the time. I clarify that for retrospective declarations under my proposals it is, essentially, that transitional arrangement that we have already discussed and that the identity requirement would only be for future cases.

I was asked about domestic versus international and why would we want to incentivise people to engage in surrogacy here rather than abroad. This is for a couple of reasons. We are having a discussion here today where all of the contributors are very much in favour of putting in place laws that will facilitate people to engage in surrogacy be it domestic or international. That is the tenor of the discussion today but that is not a view which is universally shared. There are people who have very significant concerns and even objections to all of this. Consequently, in any laws that we do introduce, we need to do two things. First, from a legal point of view, we need to ensure that we comply with Ireland's international law obligations under the Convention on the Rights of the Child and the European Convention on Human Rights. We must put in place the highest standards with respect to what we are required to do under those commitments.

Those laws also need to assuage the concerns of those who might oppose their enactment. From that point of view, when we talk about how can we regulate surrogacy in a way that we best ward off the potential risks to children's rights, surrogate mothers, intending parents and all parties involved, we always need to be cognisant of the fact that we can pass laws governing what happens here in Ireland and that we cannot pass laws governing what happens in other jurisdictions. Equally, there is a reality with international arrangements, as the English High Court has observed in some of the cases that it has dealt with, that by the time the child arrives in the jurisdiction it is often a little late in the day to try to do things to address anomalies that have arisen earlier in the process. This is the reason for the recommendations around the domestic process, in that if we try to have people engage in surrogacy in Ireland rather than abroad, we can put in place a framework where we have full control over the laws governing that. We can put in place the highest standards to protect the rights of all parties. We can also have that pre-conception part of the process where people go before the courts seeking authorisation before the process begins and that has two advantages. One is that it can avoid problems before they arise, that is, before the child is born rather than after. Second, from the parents' point of view, it means that parentage transfers immediately from the moment of birth and one does not get that in-between period. We can do all of that in a domestic framework. It is an advantageous process for those reasons and, therefore, it is good if we can incentivise people to do it here under that process, which is better for the child and the parents and allows us to ward off the risks more effectively. Once people go outside of the jurisdiction one enters a situation where we do not have full control over the framework governing the process. Our laws, in a sense, do not even become involved until the child has already been born. As more things can go wrong in an international arrangement, that is why I recommended a domestic arrangement.

For all that, I reiterate that we still need to make a provision for the international pathway simply because we are a small country and there will always be a limited availability of surrogates. No matter what we have as a domestic framework there will still be people bringing children home to Ireland having engaged in international surrogacy. That is the reality and we cannot continue to keep our head in the sand on that.