Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

This is on section 14. Some general points have been made by the LGBT+ parenting alliance. The surrogate is not automatically assigned legal recognition as the mother but she would have an objection period prior to the birth. We discussed this at the briefing last week, namely, the status during the period between the child being born and the parental order being made. I asked the Department of Justice how long it would be likely to take, given the waiting lists in the courts and so on for a parental order application to be heard. Could that be a lengthy period? I am thinking of the difficulties as regards what happens in the meantime.

The other request is that in the event of a conflict, there would be a legal mechanism to dispense with the surrogate's consent to the parental order where it is in the best interests of the child. Instinctively, you would be inclined to think that should not apply to the surrogate but there may well be circumstances where the best interests of the child are not served, for example, if there is a change of mind or the agreement is not followed through. The other area is that the surrogate should not be registered on the birth certificate but, rather, only on the national surrogacy register. The alliance argues that the child needs legal certainty from birth, since it may be some time before a parental order is granted, in terms of who can make decisions and who will have legal custody. There may well be critical medical decisions that have to be taken during those early weeks and months of the child's life. The Department is of the view that the birth mother is the legal mother and has determined that her parentage has to be transferred and her consent is absolute. In the context of surrogacy, should that "absolute" remain? Given that the surrogate would have no gestational link to the child and there is no legal precedent, should she have absolute discretion?

I am not looking for an answer here and now. These are some of the very tricky issues that will arise. In circumstances where the prior agreement goes wrong or the surrogate does not follow through on that, possibly changes her mind, moves or whatever, what is the legal status, then, of that child? Is there no input in relation to the agreement that has been reached prior to the pregnancy? Do the intending parents have no rights? Who takes on responsibility where the best interests of the child may not be served? You would hope this situation would not arise but it is quite possible that it would. There is a need for clarity on the status of the child and who can take critical decisions.