Dr. Andrea Mulligan:

On the former question, I know of situations where the courts kind of kick it to the Legislature. A good example is the regulation of surrogacy. There is a very important 2014 judgment, MR and DR v. An t-Ard-Chláraitheoir, which is essentially about the registration of the genetic mother as the mother in a surrogacy arrangement. In that case, various rights-based arguments were made, and while there are a lot of different judgments, in essence, the court says “This is a matter for the Oireachtas. Over to you, and you should have dealt with this before.” That is still ongoing and I see some of the same members here who were on the committee dealing with that issue.

That is quite a good example. In that situation, some members of the court say there are constitutional rights engaged and some members of the court say there are no constitutional rights engaged, effectively, but everyone agrees it is a matter for the Legislature to deal with the constitutional rights. That is very important. Ultimately, whether the committee believes Dr. Hickey, Dr. Casey or me in respect of the constitutional question, what it is very important to bear in mind is that the Legislature gets a great degree of deference in its assessment of constitutional rights and obligations. I do not think Dr. Casey would disagree with that. Whatever the right question is, and obviously we are adamant it is one way, the decisions of the Legislature are afforded a great degree of weight. The Oireachtas has an obligation to balance the relevant rights and then the courts take that very seriously.