Dr. Andrea Mulligan:

-----yet legislate for most people, who are well-intentioned and good people, who do not do any of those terrible things. This applies to the law generally, but it is especially the case concerning surrogacy, because we are trying to regulate something that we have decided is, essentially, good. As I said, I think surrogacy is miraculous. In that context, we are trying to legislate for this good thing that can sometimes go wrong. That is the challenge. I am not saying at all that this is what intended parents are like. It is absolutely not the case. Most important, many Irish intended parents do see the surrogate as important, and this is significant. Any approach to surrogacy that attempts to ignore the role of the surrogate is bad, whereas openness in surrogacy is good. For example, the history of surrogacy in the UK is positive. It has been common for surrogates to be involved in the broader family and for the child to grow up knowing the surrogate, and that is the optimal outcome. It is more difficult for that to happen with an international arrangement, but it is not impossible, especially with translation apps, which I have heard are being used by people to talk to their surrogate. These places abroad are not far away anymore. Involving the surrogate is essential to ethical surrogacy, in so far as that is possible.

Turning to the "liberal" versus "broad" point first, because this is straightforward, I agree with Senator Seery Kearney. I am not wedded to the use of the word "liberal", and perhaps "broad" is better. The Senator is right that "liberal" is a loaded word. It gets all sorts of reactions, so I will perhaps drop that description and refer instead to a "broader" discretionary approach. That is a better categorisation.

Moving on to commerciality, I again agree with the Senator.

As noted in my briefing document, people obsess almost too much over the commercial aspects of surrogacy and not enough over other aspects. There could be a commercial arrangement where the surrogate was part of the extended family, the child knew her and had a great relationship, and everything about it was ethical, but she was paid a lot of money. That would not necessarily be bad. Payment is not the only thing to matter here. Many other things are going on. There is a tendency for people to obsess over the money and not pay enough attention to other ethical issues. The decision in the current Bill is to prohibit commercial surrogacy, which is fine, but it is not the only issue. I agree that it can be weaponised. This is a much more complicated question than mere payment can accommodate.

There is no definition. One could probably deal with this area without using the term "commercial surrogacy", which could be dropped, because it is probably not helpful. The UK courts are not perfect, but they have had to grapple with this. They have not stated that it is bad because money was paid, but have asked what the nature of the arrangement was, the relationship between the sum and reasonable expenses, whether the woman was independently advised, and so on. The things that are bad about commercial surrogacy are much more nuanced than simple payment. It would be a good idea to avoid the term, because it does not really tell anything. The stigma is a problem too. Commercial surrogacy is bandied around as if it is the only matter to discuss and as if it is bad. There are children who are the result of arrangements where money was paid. That is not necessarily bad and one has to think of the history of those children. The history of humanity has children coming into existence in many terrible ways and those children should never be stigmatised for any of that.