Ms Claire O'Connell:

It is a real problem. My opinion on mistakes that have been made in the CFRA would include exclusions about known donors, as I just said. Not being able to avail of non-clinical donors in human assisted reproduction is a problem because it requires unnecessary medical interventions on something that can be a very private and lovely process at home. One technical issue I have is around sections 21 and 22. These are the sections that deal with retrospective declarations of parentage. They have strict criteria and going forward there are strict criteria. What there is not is a discretionary principle for the court. I see this a lot with surrogacy in the UK and the court cases that arise there. Sometimes people, through ignorance, mistake or something that may not even have been their fault, fall outside of a framework. What needs to happen in each court application is that a level of discretion is provided to the court to allow it to say have regard to, say, the best interests of the child or even the autonomy of the surrogate. Different principles can be applied in different contexts. That discretion does not exist in the CFRA. It currently does not exist in the 2022 Bill. In fact, it is more restrictive than in the general scheme of the 2017 Bill in that the latter allowed discretion to dispense with a surrogate's consent in certain circumstances. That has been removed. Allowing for that discretion is something that is recommended by the UK law commissions.