Dr. Andrea Mulligan:

The Deputy's first question is a good one. What does commercial surrogacy mean? There is no strict definition of commercial surrogacy. The Deputy has hit upon a really important point there, which is that we cannot say exactly what commercial surrogacy is. There are lots of different shades of commercial surrogacy. Some people would object to the term "commercial surrogacy" being used at all. It can be seen as quite inflammatory. People would say that it should be called "compensated surrogacy". I am not wedded to the term "commercial surrogacy". I am using it because it is commonly used and understood. However, it can mean many different things and that is exactly the challenge. I am not an expert on the cost of surrogacy in different countries, but I can say that broadly speaking, for example, surrogates in the US can be paid a very large sum of money. There is no cap on what surrogates can be paid there. People could be earning a very substantial sum. On the other end of the spectrum, there is surrogacy in other countries where the cost of living is lower. People are being paid what looks like a smallish sum to us, but it may be a very big sum to them. There are lots of different shades of grey. There is the end of the scale where the surrogacy is really on the borderline of whether it is commercial or not. Let us say that somebody is paid what they would have earned at work for the full duration of their pregnancy. Is that commercial surrogacy or not? Is that compensated? Maybe it is just compensated. We can see that the AHR Bill is trying to tread that line by stating that a surrogate can earn six months' wages, but not nine or ten months' wages. We are always trying to draw these fine distinctions. The answer is that there is really no strict definition of commercial surrogacy. It comes in lots of different shapes and sizes. That is exactly what we are trying to deal with.

On whether going through an agency is better, it is a very loaded question. A huge problem in international surrogacy is that there are lots of not particularly trustworthy middlemen, who are potentially exploiting people. Actually, going through an agency could be worse than not going through an agency. However, going through a properly regulated agency probably would be better. It is not plausible that someone from Ireland is going to be able to find an individual person in another jurisdiction to be a surrogate for them. One would probably want some kind of properly regulated agency, but it cannot be assumed that just because there is an agency, there will be better protections.

On the moderate and the liberal approaches that the Deputy asked me to talk a bit more about, I suppose if we are going down the moderate route, we really need to decide on the core elements of our domestic regime that we will not negotiate on and that must be squared with. For example, the right to identity is very well protected in the draft legislation. Ireland is actually a world leader on the right to identity. I am very proud to talk on Irish legislation on the right to identity outside of Ireland, because we are so robust and impressive on it. It might be decided that a surrogacy arrangement will not be recognised in Ireland unless it can be shown that there is a way for the child to identify the genetic mother and the gestational mother, for example. That could be a core requirement. In terms of the commercial element, we might say that paying money is okay, but we will look at certain indicia to tell us whether or not there has been exploitation. A really good analogue is the UK courts looking at this issue. I mentioned, in my briefing document, some of the case law of the English courts. I can provide more information on that if it is helpful. Essentially, what they have done, when they encounter commercial surrogacy arrangements, is to look at them and consider how much the person has been paid and how far away from reasonable expenses the sum they have been paid is. That is really important to them. They ask if the surrogate was able to negotiate and if she was independently legally advised. Taking the US as an example, generally speaking, surrogates will have their own legal representation. They will be quite empowered. Those are the kind of things that we might look at. If we are trying to craft the moderate approach, we will need to establish the key indicia of surrogacy on which we will not negotiate, that will mean it is okay to grant a parental order or equivalent. Those are the kind of things that I suggest the members might consider. They might also consider whether the surrogate already has a child. Members should look at what is in the AHR Bill and determine what is essential and what is not.

The liberal route would be a very discretionary case-by-case approach, whereby the courts just look at surrogacy arrangements and have complete jurisdiction to rule on what is in the best interests of the child. Because it would be such a broad approach, it is hard to pin down what it would look like. Essentially, it would give very broad discretion to a judge, I would say, to recognise parentage without constraining that.

In the moderate approach, that discretion would be constrained. In the liberal approach, it would not be.

There is an interesting idea about the regulatory authority. The English and Scottish law commissions published an interesting report on surrogacy in 2019. It is a great document that the committee will have come across. They suggested that it might be a good idea to recognise some surrogacy arrangements via the authority. In this way, some people would not have to go to court and there would be a streamlined process for them. The advantage of this is that it would be easier and more straightforward for parents and people might be incentivised to go to those jurisdictions that we view as being okay and not to those with which we are not comfortable. This approach would involve the Legislature deciding the core requirements and allowing the authority to make decisions and have procedures to recognise them. Either way, the legislation would have to decide what the core requirements were.