Professor Conor O'Mahony:

That is something on which my report was silent. I guess, in principle, it could be either or both. The recommendation, broadly speaking, was that international surrogacy arrangements would involve an application to the High Court. I mentioned earlier that this would be a more involved process than for domestic surrogacy. Whereas a domestic surrogacy arrangement could potentially be improved at District Court or Circuit Court level, the higher level of supervision of a High Court proceeding would be appropriate in the case of international surrogacy, to reflect the heightened level of supervision due to the additional risks involved in an international agreement. As to who would be making the application, that could be Irish lawyers making an application to the Irish High Court. It could also be that there would be lawyers from another jurisdiction making an application to the Irish High Court. There is no reason in principle why it would have to be one or the other; in many cases it could be a collaborative effort whereby a couple may have lawyers in each jurisdiction.

One of the points that came up earlier was a question on the timing of the application. There was another issue relating to the two-stage process. I will deal first with the two-stage process. Why is it that the report recommended that it would be a two-stage court process for domestic whereas only a single stage for international? That is simply because on the authorisation question; an Irish court does not have jurisdiction to authorise an arrangement in another country. That is why there was no recommendation on advance authorisation by an Irish court for an arrangement in another jurisdiction, because it would simply be outside the jurisdiction of the Irish court.

The other question was whether that hearing would be held before or after the child arrives in the jurisdiction. This is a point of detail rather than a point of principle. It could be either, in principle. There are advantages and disadvantages to each approach. I settled on recommending that it would be before the child is brought to the jurisdiction, which I took from the Belgian approach. The idea there is that if in the event that the Irish court were to look at the arrangement and decide in the course of supervising it that the law of the country where the surrogacy arrangement had taken place was not compiled with, then it would be better to find that out before the child leaves that jurisdiction and arrives here rather than to find it out after the child arrives here in the jurisdiction. The courts in England and Wales have commented on a number of occasions that by the time a child arrives in the jurisdiction, it creates a situation where it can be quite difficult for the courts to refuse to recognise an arrangement because it is almost too late at that point. That was my thinking in recommending that the court application would occur before the child arrives in the jurisdiction. It could take place after the child arrives in the jurisdiction, but it carries that disadvantage of going down that route.

The issue was raised earlier as to how that would work with remote hearings in terms of the timing and so on. My report had recommended that, first, remote hearings are now a feature of Irish courts. Since Covid, they are very much part and parcel of how Irish courts work. Equally, however, it is the kind of hearing that could potentially be handled by the intending parents' lawyers and the parents would not necessarily have to be present.

On the question of timing and whether this might run into difficulty with visas expiring, my report recommended that this could be scheduled. There would be a reasonable degree of certainty about the window within which the baby would be born, so we could potentially schedule this in advance on a fast-track situation to avoid lengthy delays between the birth of the child and the holding of the hearing. That was the model I recommended. Having said that, there is no reason in principle why it could not equally happen after the child arrives in the jurisdiction.