Professor Conor O'Mahony:

I will address Deputy Bacik's second point on the sanctions question first because it follows on very directly from the point I made in response to Senator Ruane's question. My recommendation was that to try to avoid that situation as we do not want to penalise the children, as the Deputy said, but we want to incentivise the very best practice with the parents. If people are going to engage in international surrogacy arrangements and we are going to recognise those, we want them to be ones we are comfortable with as a country and that comply with the standards which we find acceptable.

That is why the recommendation in the report is for a kind of two-tier situation in which there would be parentage and guardianship, which are different legal statuses. Parentage is what people ultimately want. It is the gold standard most people are seeking when they enter these arrangements. We recommend that, where the arrangement complies with all of the standards and various other criteria and where we are happy that the child's rights, for example, the right to identity, are fully protected, full parentage status would be available. However, the use of an anonymous donor, for example, which means by definition that the right to identity cannot be protected, deviates from the gold standard we are trying to set. The sanction, as it were, would be to say that parentage is now off the table. People who do not comply with the gold standard would not be eligible for full parentage. However, we do not want to penalise such people's children by making them legal strangers so guardianship would still be available from birth. Guardianship is available at the moment but only after a wait of two to three years, depending on the circumstances. Guardianship would be available from birth but parentage would not be available. In that way, legal recognition could still be provided and people could still be given the right to make decisions for their child including consenting to medical treatment, applying for passports and all of those practical, day-to-day issues while still providing a very strong incentive for people to comply with the highest standards as that is what is required to get parentage, which is ultimately what people want.

The question of commercial versus altruistic arrangements is very complicated. There is no question about that. Some people may look at the recommendation in the report in which I say there should only be altruistic surrogacy domestically and wonder why I did not replicate that recommendation for international surrogacy. The rationale is simple. On the one hand, we have obligations under the UN Convention on the Rights of the Child and the UN special rapporteur on the sale and sexual exploitation of children has expressed concerns about aspects of commercial surrogacy. Much of that material suggests that we would best comply with that framework in our domestic laws and in what we can regulate here in this country by going for altruistic surrogacy only.

At the same time, we cannot legislate for what happens in other countries. If Ukraine or California wants to allow commercial surrogacy, we cannot stop that. If Irish couples are going to go to these places and come back to Ireland with children born as a result of those commercial surrogacy arrangements, we need to figure out how to deal with that in a way that avoids all of the problems that have been discussed today. We need to be conscious of the risk of exploitation and that this may amount to the sale of children. The report recommends that this be dealt with by requiring a High Court application. This means the court would have to be satisfied that regulation in the jurisdiction in question is such that it ensures the arrangement does not amount to the sale of children, there was genuine consent on the part of the surrogate mother and so on. The court would have to satisfy itself of that before it would grant an order recognising the relationships deriving from that arrangement. In doing that, we can construct our laws in a way that tries to direct people towards countries whose frameworks are compatible with ours. People would be on notice that, if they go to countries where things are looser, the High Court might not be satisfied that the standards have been met.