Dr. Lydia Bracken:

That approach was chosen. Given that it is very similar to what is currently in place in the UK, we have simply looked across the pond and copied their legislation. They have a post-birth model in the UK where the surrogate is recognised as the legal mother once the child is born and parentage is transferred later. As the timelines in the proposed Bill are exactly the same as those in the UK legislation, I believe the provision was copied from the UK. That is not an adequate approach because, as we said, it means that at birth the child will not have a legal relationship with the second intending parent, namely, the parent who is not genetically related to the child. That leaves the second parent in a vulnerable position as it means that in the first few weeks of the child's life, people are going to court to establish a parentage as opposed to simply caring for their child as they should be able to do.

We recommend a pre-conception approach. This is where a person goes to court prior to the conception of the child and securing a court order authorising surrogacy. This would ensure the different criteria have been met and allocate parentage at that stage. This approach allows for certainty and means that as soon as the child is born, both intended parents are recognised as legal parents. The surrogate mother is not recognised as a legal parent and there is no need to go back to court after the birth of the child to establish who the parents are.