Professor Deirdre Madden:

I thank Deputy O'Connell. The Deputy gave the example of a same-sex couple where one is genetically the father of the child and the other does not have any legal relationship to the child. This also happens with heterosexual couples; it is not just with same-sex couples. If a couple goes abroad for surrogacy, the genetic father can come back and apply to be recognised as the legal guardian of the child but his wife, who is raising the child as her own, does not have that right even though she is the genetic mother. The father, as genetic father, has the right to be a legal guardian but his wife does not have the right, as genetic mother, to be legal guardian. Under the Children and Family Relationships Act, she can, after two years and having lived with the guardian, apply for recognition of her role. During the two-year period, one must ask whether she could sign a medical consent form for the child? Could she apply for a passport for the child? If the couple were to separate or divorce, would she have any right of access to the child, whom she would have raised as her own? It is not just in respect of same-sex couples that the problem arises. It is crucial that we address that issue.

Deputy O'Connell mentioned the 1% statistic that I raised. This figure is from the United States. The other statistic I have is from the United Kingdom, where the surrogate mother changes her mind in about 4% of cases. That statistic is from a study in 1998 by Professor Margaret Brazier, who was commissioned by the UK Parliament at that point to consider the issue of payments to surrogates. As part of that study, she came up with a figure of approximately 4%. That is probably out of date at this point. I could certainly draw on expertise in the United Kingdom to find out the current figure but it is difficult. The only way it can be ascertained is by examining the number of cases that have involved litigation and so on. We can get some estimate but the circumstances in question are exceptionally rare.