Professor Conor O'Mahony:

On the first issue about the discussion this morning around a lot of things being described as very difficult, that was my sense as well, that the reason given for certain things not being done was because they were difficult. To me, that does not seem to be a legitimate reason. When I was writing my report, it would have been much easier for me to say I will not say anything about international surrogacy because no other country has as of yet designed a framework specifically for this and therefore I am not going to try. That would have been a much easier path and it would have taken me much less time, but that was not the route I decided to go down. Just because we are the first to do something does not have to mean we will never do it or that we will only follow and never lead.

The mandate I got for that report was to come up with proposals based on international children's rights law and drawing on the best material available, from the UN Committee on the Rights of the Child, the UN special rapporteur on the sale and sexual exploitation of children and the European Court of Human Rights, ECHR. I attempted to explain what this law would look like. Of course, there may be points of detail that could be tweaked and so on, but to my mind, just because it is difficult, challenging and complicated is not a reason to avoid doing it. There is a principled way to design that law from scratch and to be a country that takes the lead and shows how we might do this.

This is also a reflection of what I said earlier in response to Deputy Funchion’s question, that workarounds that perhaps are available and that work in other countries might not work so well here. Therefore, we have to adapt to that reality and to what we need here. Could we mirror domestic requirements in respect of what we will or will not recognise internationally? “Yes”, is the simple answer. We could say that and make it clear around, for example, the minimum age or the requirement that someone has had another child with someone. Yes, we could.

The commercial question is where things become a bit complicated. By its nature, the reality is that in most cases where people engage in international surrogacy, it will have had a commercial dimension. How else will one identify a surrogate internationally? That is the reality. Identifying somebody who will act as an altruistic surrogate for somebody in another jurisdiction is likely to be very challenging. It is fair to say the majority, if not all, of international surrogacy will have a commercial dimension. That then gives us the challenge that if that is going to continue to be available in other jurisdictions, which it will, and there continue to be Irish couples bringing children back to Ireland who engaged in commercial surrogacy that complied with local laws in other jurisdictions, we have to respond to that reality. Right now, we are not responding to it. Right now, we are pretending it does not exist. We must have some form of framework for dealing with that. The detail can be worked out, but we know right now that having no framework for it is problematic and violates the rights of children and the rights of the families. We have a choice. Do we continue to allow that situation to persist or do we grasp the nettle?