Professor Conor O'Mahony:

On whether citizenship is soon enough, in practical terms one cannot grant citizenship to somebody who has not been born so in reality citizenship would have to be determined after the child has been born. As the Vice Chairman alluded to, there is a big advantage to making the decision before the child is brought into the jurisdiction because, if it is not made, we run into the practical difficulty we currently have as to the child's actual entitlement to enter the jurisdiction and must come up with an ad hocsolution that allows the child to be brought into the country. Again, that is all part of the rationale for why I felt it was better to have a single court procedure that would take place between the birth of the child but before the child was brought into the jurisdiction which would determine parentage and citizenship, so that by the time the parents sought to bring the child into the jurisdiction, everything would have been squared away.

What if that were to fail? That is tricky because we must strike a balance if we recognise there are significant potential concerns about surrogacy arrangements, such as the position of a surrogate mother, but also in respect of the child. We know there are risks around the law and the sale of children and there are risks around issues that relate to the protection of the right to identity. There is also the question of what if there is an arrangement that did not comply with the local framework. In that case there could be a clash between the laws of two different jurisdictions which could end up quite complex. For that reason it is fair to say there needs to be a basis on which we will say there will be certain arrangements we will not recognise.

The question then becomes when that should happen and, in my view, that should happen as early as possible. If we are not going to grant recognition because, for example, the surrogate mother did not adequately dissent or because local laws were not observed, we need to find that out very early on and that then becomes a dispute between the surrogate mother and the intending parents in the jurisdiction where the arrangement took place, which must be resolved under the laws of that jurisdiction and in its courts. It is kept in one jurisdiction and it avoids it becoming a cross-jurisdictional issue where the child is now in Ireland and we get into all sorts of very significant complications around enforcement, recognition of judgments, conflicts of law and so on. If we all agree there are certain red lines we would wish to draw to say these are the types of surrogacy arrangements we would not be happy to stand over, then there needs to be a possibility of our courts saying they are not going to recognise particular ones.

Where would that lead to? That leads to a slightly separate point, which is a point I made earlier about the protections we would provide in our domestic law for the foreign surrogate mother. If we make those completely equivalent to the protections we would provide in domestic law, they will end up being quite detailed and prescriptive. As the detailed and prescriptive regime we might have domestically might differ from the regimes in other jurisdictions, they might not always align and that would increase the number of cases in which our courts would look at an international surrogacy arrangement and say it has not met the requirements for recognition in this country and therefore they are not going to grant recognition. What does that mean in practice? It means children are back to the same situation I have already outlined, which is that the father with the genetic connection could receive a declaration of parentage, he would have to go to court to get that and that may take a certain amount of time. The mother could only ever become a guardian, could never be recognised as a parent and would have to wait up to two years to make that application.

In my report, to smooth over that particular issue with the mother and the two-year wait for guardianship, I proposed a halfway solution to steer people towards the best practices that would meet the standards we would like to see met, which would be to say, if a person meets those standards, he or she will be eligible for full parentage. We have heard from the families repeatedly that parentage is what they want so that is an incentive for them to adhere to the highest standards. On the other hand, if there are cases that fall short of that in certain circumstances, for example, if people use an unknown donor and, therefore, the right to identity could not be traced, they would not be entitled to parentage but could still apply to the court for guardianship. That would mean the application would have to be heard by the court and decided in terms of the best interests of the child.