Dr. Andrea Mulligan:

That is a really good question. Possibly the biggest failing in the draft legislation is that there is no retrospective regime at all. Even if a child was born in Ireland through an altruistic arrangement, which would have been the gold standard, there is no way to regularise the child's parental status. That is a bizarre omission. The Children and Family Relationships Act 2015 has a retrospective regime, which was commenced in 2020 and has allowed for the recognition of parental status for many children born through donor-assisted reproduction. It was better late than never and it is really working now. The fact that there are no retrospective provisions, even for children born here, is really strange. Is there a different rule for retrospective cases? I think there should be and it can be done. One is dealing with a period when surrogacy was unregulated in Irish law. There is a line. It is not unfair to say what the rules in the future will be, but that we will sort out the legal status of the people who went through those arrangements previously. The State did not make any laws, so how were people to know what to do or how to comply?

It may be necessary to have different rules for the retrospective regime, with much more stringent rules in future. Identity protection is a good example of that. One could have arrangements whereby it is just not possible to provide good identity protection. Maybe one compromises a little on that retrospectively but not prospectively. There are certain things that could be relaxed in the retrospective regime. Looking at the provisions of the Children and Family Relationships Act 2015, that is what it does. I have not looked at it recently. From memory, I think one can regularise parental status where there has been an anonymous donation, whereas that cannot be used in the future. There is a good precedent. One can have different rules looking backwards and going forwards.