Professor Deirdre Madden:

I thank the Deputy. My comments on pre-birth scrutiny and parental order flow from the Commission on Assisted Human Reproduction’s recommendations. They seem like a lifetime ago. They were published in 2005. I chaired the subgroup of the commission on donor programmes and surrogacy. The commission recommended that the child who was born through surrogacy should be presumed to be that of the intended parents and that this was most in keeping with and consistent with the best interests of the child.

The pre-birth scrutiny of domestic surrogacy arrangements, or all surrogacy arrangements, would be to ensure that in advance of birth, all the legislative requirements have been met. It is difficult to carry out a test of the best interests of the child either during a pregnancy or after a pregnancy. We are used to best interest tests in the context of adoption where, for example, there is a child in existence for whom we are trying to find the best environment to live.

However, for a child who has not been born or who has just been born, what does it mean when we talk about the best interests of the child? Will we have some sort of fitness-to-parent test for couples who have chosen this route by which to create their family? We need to be very careful about any such suggestion because it could be potentially discriminatory against people who have backgrounds that may be seen as less than desirable. I would not want to see any prejudicial criteria in existence in that respect. The pre-birth scrutiny therefore would be to make sure that the woman, for example, has had the opportunity to take independent legal advice.

There would also be the other criteria, which I mentioned in my presentation, namely, that she is given fully informed consent and so on. Everything should be aligned as regards the legislation. At the moment of birth, the parentage should be certain, so that the intended parents are the legal parents of the child and do not have to wait for a month, six months or 12 months to have that clarity. When we think about the best interests of the child, there might be medical circumstances that might arise whereby a consent would have to be given for medical treatment of a child. The child would at that time be living with the intended parents but they would not have any legal rights to give consent for medical treatment. There are therefore many practical consequences involved in the kind of parental order that has been suggested in the Bill, which I would certainly not be in favour of.