Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I thank Deputy Shortall for the proposed amendment. I agree with what Deputy Durkan has said. On Deputy Cullinane's points, this was considered in great detail. I have had exactly those conversations with the LGBT+ group. It has made the various points very well and in an informed manner. We have taken them very seriously. To address Deputy Cullinane's point and the points made by other Deputies, we have looked at this to get the balance right here between having some form of judicial discretion but also having very clear safeguards in law that must be complied with. That is what I am trying to achieve here.

While on a human level I have great sympathy with amendment before us, and we all understand the point of it, it seeks to provide that the paramount concern in the court proceedings in domestic surrogacy is the best interests of the child. Why is this potentially problematic legally while on a normal level it makes an awful lot of sense? In practice it would provide the Judiciary with a very wide margin of discretion in terms of the parental order for surrogacy applications under the Bill. The concern is that in doing so, while it is obviously not the intention, it would undermine the protections of the children we are legislating for, namely, children born as a result of a surrogacy agreement, which would be brought in in another provision of the Act.

It is important to note that the best interests of the child, as I am sure we all appreciate, already form a central part of the proposed surrogacy provisions. I will give a few examples. All the requirements for the surrogate mothers, intending parents and any donor involved are underpinned by our goals. This includes those related to surrogacy being altruistic, the suitability tests for the prospective surrogate mother, the safety of the child assessment - which is critical and carried out by the AHRRA - or the need for at least one of the intending parents to be genetically related to the child. The measures we are putting in place will guarantee the protection of the child's identity rights through the mandatory inclusion of information on the national surrogacy register and, if applicable, the national donor-conceived person register. At the same time, and importantly, the best interests of the child already form and will continue to form part of the court's consideration when deciding whether to grant a parental order. However, the inclusion of such a wide judicial discretion through the term "paramount", as sought by at least one of the groups that were referenced, creates a real concern that this could unintentionally undermine the safeguards we are putting in place in the legislation. These are based on the best interests of the child and child welfare issues by providing means for intending parents to receive parentage without meeting the very carefully constructed safeguards we are putting in place.