Professor Conor O'Mahony:

There was quite a lot in the previous two rounds of questions. I will deal quickly with the second point, before coming back to the guardianship versus parentage question, and explain my thinking on that. On the question of the assessment of parents and the authorisation of the arrangement, this essentially is similar to what would happen in an adoption scenario. It is not the case that parents who want to adopt can simply turn up and say they are going to adopt a child. There is a process through which parents are assessed as potential adopters.

We have to be conscious of the risks here as well. I absolutely agree that in the vast majority of cases the issue here will be a relatively straightforward one. Absolutely, these are people who have a deep desire to have a child and to do the best they possibly can for that child. However, in this world there are going to be people who are concerned about the risks here. The risks, when one strays into the very serious side, appear from a sale of children point of view and the motivations of people who might be inclined to make use of international surrogacy in countries where regulation is poor in order to get their hands on a child they might not otherwise be able to get their hands on. These risks exist. I am not saying that it is a big risk in the vast majority of cases. Nonetheless, if we are to have a legal framework we can stand over and say it is compliant with the highest children's rights standards, we must legislate not just for the best cases but also for the risks associated with the very rare and worst cases that might also arise. That was the thinking there.

On the other question of parentage versus guardianship, in a sense it is regrettable that the term "sanctions" came into our discussion at all. I did not use that word at any point in the report, and it obviously paints it in a particular light. The thinking behind this is that our discussion today so far has entirely focused on the recognition of family relationships. We have not really talked about the right to identity. The remit I had for the report was to look at all children's rights and children's best interests. The principle of children's best interests envisages that all children's rights be protected, including the right to identity. Members of the committee will have engaged in the last while with people working on the Birth Information and Tracing Bill, will have met people working on that issue and will be acutely aware of what a big issue identity is for people who do not know their origins and their birth story and of the lifelong impact that has. That is a significant issue in this conversation. It is one we cannot lose sight of and one we are legally bound to take into account in what we do.

Let us look at what we do currently in the Children and Family Relationships Act 2015. In order to try to protect the right to identity we tell people that we want them to go to a clinic where there are record-keeping obligations, as that will ensure that people can trace their identities later. However, to make that happen, we say that if one engages in a do-it-yourself, DIY, procedure at home, one is completely outside the Act. In essence, one qualifies for nothing. In trying to protect identity we say it is all or nothing - people either get the recognition of the family relationship and protection of the right to identity or they get neither of those things. What I was attempting to construct was to take the idea that we want to ensure that identity is protected, which means that we must have non-anonymous, identifiable donors being used, record-keeping procedures and a framework that will allow people to trace their identity if and when they wish to do so. At the same time, we also want to avoid that all-or-nothing approach which is the flaw in the Children and Family Relationships Act at present.

On guardianship and parentage, from the point of view of all the practicalities we have discussed today, guardianship is the more significant status. For example, an unmarried father who has not been appointed a guardian has parentage, but he is not able to consent to medical treatment, is not able to consent to a passport and so forth. From the point of view of the day-to-day practicalities, it is guardianship which gives people the legal right to make those decisions, not parentage. Guardianship will address those points.

Mr. Kenny Moore mentioned that it does not kick in until two years of age, but the recommendation in the report was not that somebody who finds himself or herself having guardianship rather than surrogacy would have to wait those two years, but that it would be available immediately and not just from the age of two years. The key point in all of it is that what I was trying to achieve in the report was not that anybody would find himself or herself in this position but that all somebody has to do to qualify for full parentage would be to ensure that the right to identity is protected by using an identifiable donor and then filing the relevant paperwork with the relevant register, which would include the information that would allow people to trace later on. Anybody who does that gets full parentage. It was intended to be a nudge, something that would steer people in a particular direction. It was not really intended to be something that one would want to see used with any type of frequency. It would simply be that people would go into the process knowing that if they engage in international surrogacy or decide to opt for an at-home donor-assisted human reproduction procedure, they know when they go into that process that they want full parentage, which, for all the reasons Mr. Kenny Moore articulated so well, is what people want.

We need to make sure that we use an identifiable donor and we file the relevant paperwork, and if we do we will get full parentage. It was intended as a nudge and to avoid the all-or-nothing approach that we currently have for at-home procedures, which means that people will have nothing if they do not protect identities. There is a safety net element as well.