Professor Conor O'Mahony:

In broad terms. There are points of detail there that could vary as to the exact sequencing of those steps and the exact forms those steps could take. To take the Senator's last point on the citizenship issue first, it is very important that is included. Ideally, you do not want to have the situation of statelessness alluded to in this morning's session arising for any child. The Verona Principles are very clear on that. It is not in the best interests of children to be left stateless in circumstances where the law of the jurisdiction where they were born does not recognise them as a citizen of that country but equally they are not yet recognised as a citizen of Ireland. We also know from existing experience there can be delays in reaching the point where citizenship is granted. That is why my report recommended that in the best interests of the child you would deal with the citizenship question at the same time as you would deal with the parentage question, rather than having a separate process that might result in a hiatus during which the child is stateless. The issues paper essentially dismissed that recommendation on the basis that would create difficulties with existing citizenship legislation. To my view, that is not an adequate response to that. If there are inconsistencies with existing citizenship legislation then you amend that legislation through miscellaneous provisions of this Bill. That is what the Oireachtas is there to do and it can do that at any time.

Very briefly on the MR decision, it makes clear the courts see the existing gap and the lack of regulation as being problematic for children and as not being in the best interests of children. The courts want the Oireachtas to legislate in this area. They have stressed the decisions to be made as to the detail of that are ones for the Oireachtas and not for the courts. That gives us a very clear signal the risk the issues paper alludes to of potential challenges resulting in laws being declared unconstitutional in the future is a very low risk because the courts have made it very clear the social policy nature of surrogacy is such that it is really for the Oireachtas to make those decisions and the courts are really very slow and reluctant to get involved in second-guessing those decisions. As such, the Oireachtas has a very wide latitude to adopt something, whether it is exactly along the lines the Senator just outlined in her questions or some variation on that theme. They key point I want to make there is that is all within the gift of the Oireachtas. When saying we cannot do x, y and z because of a risk of unconstitutionality, you would need to establish very clear reasons for doing so and I do not believe that has happened to date, or is especially likely given the tone of the MR judgment.