Professor Conor O'Mahony:

That is an important point. The short answer is that the Senator is correct that we cannot apply the same rules to the retrospective cases simply because it would not be reasonable to expect people to have complied with very detailed standards that did not exist and which they could not possibly have known about. In a similar way to how the Children and Family Relationships Act currently does that, where it has a separate process for retrospective recognition as distinct from future cases, my report recommends that we would have a different process around retrospective recognition of surrogacy arrangements with slightly modified criteria to reflect that. For example, the provisions on whether or not an identifiable donor was used would be softened for retrospective cases because it makes sense to try to build in the strongest protection for the right to identity for future cases. When people know that, they will then use an identifiable donor and comply with that provision. It would not make sense to penalise people where family relationships already exist and there are people caring for a child who happened to use an anonymous donor because there was no law on the point at the time. There are specific proposals in the report about the criteria that would apply for retrospective versus prospective recognition of surrogacy and the Senator will see that there are some slight alterations between those criteria to reflect the fact that we cannot expect people to have done things they could not possibly have anticipated.