Mr. Gearóid Kenny Moore:

I thank Senator Ruane for her question. Let me explain how I understand that situation would work legally from my perspective as a non-legal person. When the child returns to the State, whether the parents are a same-sex couple or an opposite-sex couple, the child does not really have any legal parent here in the State because the State recognises the surrogate mother as the automatic legal parent at the birth of the child. The biological dad is not automatically recognised by the State at the point of birth. He must therefore make an application for a declaration of parentage to establish his rights as a legal parent. Assuming that application is successful and he becomes a parent, as we discussed last week, the other parent, whether a female or a male, is nobody in the child's life for the first two years. He or she must apply for guardianship.

To touch on the Senator's question as to what happens if something were to happen to the legal father, who is now resident in the State, and if he were to die, the situation would be that the child would then be in the State being cared for by a guardian but the child would still have a legal parent, that is, the surrogate mother, who is living somewhere else. We do not yet know how the State would react in that situation. The rights of the legal parent, the surrogate mother, could potentially trump the rights of the guardian. Has there been a case of this nature? There was a case before the courts a number of months ago in which a legal father who had a child with his partner through surrogacy made an application because he had a terminal illness. The guardianship application could not proceed because the child had not yet reached the age of two. The case centred around establishing the right of the intended mother to apply for guardianship early and discussing what would happen to the child. I do not know whether a ruling has been delivered in that case. If the legal parent dies, the family is in a really precarious position because the child is now being cared for by a guardian but there is somebody outside the State who has higher authority, that is, the legal mother.