Professor Conor O'Mahony:

Yes. The complexity arises when the surrogate raises an objection. I may have misinterpreted the Senator but it sounded a little like she was mentioning that the surrogate would raise that objection in the hearing before the Irish courts. No matter the legal framework, we would not want to recognise surrogacy arrangements from a jurisdiction that did not ensure the surrogate had consented freely. If the surrogate was raising an objection about an absence of free and informed consent, that objection would be more appropriate for raising in the courts of the jurisdiction where the arrangement took place. They would the one who would ultimately determine authoritatively whether the surrogacy arrangement met the requirements of local laws. That is the same way it would happen for our domestic framework that we are looking to enact; if the surrogate raised an objection, the Irish courts would determine that.

This raises the tricky question that if a surrogate in another jurisdiction raises a claim in that jurisdiction's courts stating that she did not fully consent, how would the Irish system respond? There could be a position where we would simply say we would recognise whatever judgment those courts reach. That is one possible solution. That raises the question again of where is the child and whether he or she is here or there. If a child has already been brought here but the courts of the other jurisdiction were to decide that it was not a valid surrogacy arrangement in that jurisdiction due to a problem with consent, it gets into some difficulties around conflict of laws and enforcement issues for that judgment. These could potentially be overcome but in some ways there would be fewer variables if the child remained in the jurisdiction where the child was born until that dispute could be fully resolved.