Dr. Andrea Mulligan:

To be clear, I am not saying a surrogate should have indefinite rights to the child. A difficulty now is that in Irish law, the surrogate has indefinite rights. The birth mother is the mother forever. For example, to get a passport, technically, a surrogate's consent is required until the child reaches 18. The courts would dispense with the consent but, technically, the presumption is she is the mother forever. That is a major difficulty and we certainly do not want such a position. It is not good for a child either to have uncertainty or a fractious relationship between different people. Nobody wants that and I am certainly not saying that. It is a major problem in Irish law now. There are surrogates abroad who, as a matter of Irish law, remain the child's mother forever. They do not want to be the child's mother forever and I certainly do not advocate that.

The point on pre-birth orders is really good. Under the current legislative proposals, a two-stage process is essentially proposed. There would be a legal process during the pregnancy to sort out all these matters and then a sort of confirmatory process later to switch over parenthood with a final parental order. I totally agree with that. I am very much on the same page in this regard.

When I say I have a difficulty with pre-birth orders it is with it being a final order. The law in some US states has the pre-birth order as the final order. That is it and the intended parents could walk into the hospital and snatch the child from the surrogate immediately if they so wish. That does not happen or it is not something that happens commonly. It is the legal reality and the surrogate would have no right to complain about it. She would have to go to court to complain about it. That is what a strict pre-birth order regime looks like in practice. In those US states, the definition of parenthood is contractually oriented and there are pre-birth orders that allow for that. That is the type of case with which I have difficulty.

I have no problem with there being a court process during pregnancy. It could be a regulatory process with a regulator or a court process. It could simply be a contract but everybody would set out the legal position. The final order should happen subsequent to birth, and that is the position under the proposed legislation.

It is really important in terms of the pre-birth and post-birth question that everybody seems to agree that with international surrogacy, there would always need to be a post-birth order. We are not in a world where we can just directly recognise orders in other countries. I understand it is one of the reasons noted about unfairness between international and domestic surrogacy.

It is one reason why having a double-stage process in both contexts makes sense.