Professor Conor O'Mahony:

On the question of exploitation, I agree with the Deputy that we have many examples of cases where there was no question of exploitation, but that it is not to say that the risk does not exist. The risk exists and is well recognised by international human rights bodies and in the literature. There is a wide range of possibilities when it comes to surrogacy. When we legislate to regulate the recognition of surrogacy arrangements, we need our regulations to be sufficiently robust that they can deal not just with the best-case scenario but also with the worst-case scenarios. That means sometimes requiring people, who have the very best intentions and who would never do anything that would be exploitative, to jump through a couple of additional hoops just to ensure we have a framework that is also sufficiently robust to deal with people whose intentions are not so benign. That is important to say. The law must be able to cater for the worst case is as well as the best.

The Deputy asked what form exploitation might take. The key issue there is the whole question of the extent to which the surrogate is genuinely giving free and informed consent and is genuinely looked after in terms of the necessary provision of medical care, legal advice and so on. The question of compensation is an entirely different debate which members are all very familiar with; I will not get bogged down in that. That question of ensuring genuine free and informed consent is at the core of ensuring we do not have exploitation. At the minimum from that perspective, international surrogacy arrangements in the Irish courts must have a framework for confirming whether the surrogate mother gave genuinely free and informed consent to the arrangement.

If we leave it unregulated, which is what the Bill currently proposes to do, in practice a couple would engage in international surrogacy and then bring the child back to Ireland. Let us say it is the typical case where the father has provided the sperm donation and there was an egg donor. In those circumstances the father would be able to go to court and apply for a declaration of parentage because of the genetic connection. That would be granted simply on the basis of the genetic connection with no consideration of the nature of the surrogacy arrangement. The mother, who does not have a genetic connection, would not be entitled to be recognised as a parent but would be entitled to apply for guardianship after two years, which would give the mother many of the important rights in respect of making decisions for and caring for the child.

At that point if the mother has been caring for the child for two years, that application is almost certain to be granted. If we choose to do it that way, none of those processes allow for any consideration of whether the surrogate gave genuinely free and informed consent. Nor do they allow for any consideration of whether the child's right to identity was protected, that there was a framework in place for ensuring the donor was known and that there is a register allowing for tracing and so on. Leaving it unregulated ignores those risks and makes it certain that the applications will be granted. The issues paper took issue with my report on the basis that my report did not provide sufficient protection for the foreign surrogate and that it made it highly likely or certain that the application would be granted. Both of those problems loom larger in the proposed approach of leaving international surrogacy completely unregulated.

The Deputy asked about transferring parental rights pre-birth or post birth. My report recommended the pre-birth model which I believe is more in line with the relevant international children's rights standards. I know that the Office of the Ombudsman for Children took the same view earlier this morning. Having said that, post-birth is still better than a lack of any regulation, if that makes sense.

On birth certs and tracing, I reiterate what I said to Senator Keogan which is that my firm view is that there needs to be a mechanism for tracing identity, including the identity of the surrogate mother and any donors of sperm or eggs. That could be in the form of a register. What exactly goes on the birth cert is a tricky and complicated question. The surrogate mother's name could appear on the birth cert with some sort of notation to that effect. It would also be possible to leave the surrogate mother's name off the birth cert but simply have the relevant information in the register separately.

From an identity perspective, the Bill currently proposes that none of this information would be available until the child is 16. If we think about what was said this morning about the importance and benefits of early disclosure all of which was discussed in my report as well, we are saying in law that even if the parents of the child wanted to share that information with the child earlier, the law prohibits them from accessing it. To my mind that is completely contrary to children's rights.

The last point related to legislating for other countries. I reiterate that we can only do what we can do. That is why my view is that our law needs to stipulate a degree of flexibility that recognises the limits of what the Oireachtas can actually achieve. We should set minimum standards that we can stand over and accept as a country, but also allow a degree of flexibility that recognises the simple fact that it is a very wide and diverse world.