Professor Conor O'Mahony:

I might reply to that because it covers both points. The way Dr. Bracken has described it is exactly what I was aiming for so we would not go down that all or nothing route. As I said earlier, it is trying to give a nudge. If it is the case, and I have no reason to think otherwise, that parents all believe identity is important, then hopefully they will do everything they can to use identifiable donors and to make sure the records are kept, and so on. In that event, the issue of guardianship simply does not arise and it is not part of the conversation. It was trying to have that nudge in there because, otherwise, while we talk about that idea of equality, we are just trading one risk for another. If we say there is no consequence to not complying with that, what we are likely to see is more children for whom the identity records are not available. It is about trying to find a balance. There are so many different and competing considerations at times. What I was attempting to do was to construct a framework that will balance them all as best as possible.

Ms Cohalan made a reasonable point that adoption was not the best example to use, particularly given that the process will be court-based in any event. The better comparator would probably be where somebody goes to court seeking guardianship in the sense that, if somebody goes to court seeking to be appointed a guardian, a judge will have to make that decision as to whether it is in the best interests of the child to appoint this person, as Dr. Bracken just said. In any of those circumstances, there will be an assessment by a judge of what is best for the particular child and whether a relationship with his parent is best for this child. It is a case of putting in place a filtering mechanism to guard against the worst things that might happen. In the vast majority of cases, they will not happen but the risk still exists that there may be people seeking to use international surrogacy to acquire children for purposes that we might not want. The fact there would be this filter of having to go before a judge and convince the judge that this is all above board provides a level of protection against that risk. Again, in the vast majority of cases when dealing with intending parents who very deeply want to have a child for all the right reasons, as with current guardianship applications, that would be a process where the judge should be able to satisfy himself or herself of that relatively easily.