Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

The advice I am taking on this is legalistic and medical rather than from a policy perspective.

I am aware that there is some disagreement about the exact definition of the term "conceive". The advice I have is that the meaning of the term "bear" is more open to different interpretations. To bear a child can be considered to actually give birth but it can also be seen as the support or carrying of that child during a pregnancy in its entirety. "Conceive" is generally taken to mean the implantation of an embryo in the lining of the uterus. Therefore, the advice I have is that the addition of the term "and/or bear" after "conceive" is not helpful in terms of the legal clarity, especially as the second medical indication in a particular paragraph of the Bill is being unable to gestate a pregnancy to birth.

It appears that the proposed amendment to insert the words "for uterine reasons" after the medical indication relating to being unable to conceive a child is to seek to ensure that surrogacy is only contemplated when medically indicated. However, it is unclear that "uterine reasons" would represent an exhaustive list in this regard, for example, implantation failures. Also, could there be unknown reasons for a woman being considered ultimately unable to conceive?

It is crucial to emphasise that a key principle to which the authority, the AHRRA, will adhere to as a priority when deciding on applications for approval of potential surrogacy arrangements is that so-called "social surrogacy" will strictly not be permitted. Social surrogacy is basically where a female intending parent is capable of having a child either naturally or through the use of AHR treatment, including the use of donated material, without a danger to her life or serious effect on her health, but instead wishes, for whatever reasons, to employ the services of a surrogate mother. Therefore, the AHRRA will thoroughly examine every application and accompanying medical documentation to ensure that a female intending parent meets at least one of the four criteria laid out.

We do not believe it would be beneficial to delineate or to limit in primary legislation how the AHRRA intends to satisfy itself that a woman is unable to conceive a child. Similarly, we are not being overly prescriptive in terms of how it is demonstrated that a woman is unable to gestate a pregnancy or is likely to die or have significantly adversely affected health from pregnancy or giving birth. These considerations are best dealt with on a case-by-case basis using guidelines developed by the AHRRA.

I think the short version of this is that what the Deputy is seeking to put in the primary legislation can be considered by the AHRRA, and would be considered by it, but the AHRRA would be looking at that and potentially a lot of other things as well. Therefore, we will keep it to the principle in the primary legislation and then we will use the secondary legislation or the guidelines of the AHRRA to go further.