Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

We are all trying to get this right and to put the child front and centre while we balance important protections for the surrogate and rights of the intending parents. As the Deputies have said, no country has legislated for international surrogacy like this before.

There are a few points I want to make on this. First, the best interests of the child test is in the legislation. I will come back to this. It is in the legislation in the context of important layers of protection we are putting in place for the surrogate mother where we know there is potential risk of exploitation abroad, and indeed for the child.

I have great respect for the rapporteur and ombudsman, though the comments the Deputy cited - correct me if I am wrong - were not in response to the Bill. It was a broad comment for us to take into account. We have taken it into account and put a best interest of the child test in. The question we are debating and on which we had a long debate on Committee Stage is not whether the best interests of the child test should be included because it is included but whether it should trump all the other criteria we set forth so that even if an intending parent or intending parents return to Ireland with a child and have not met any of the safeguards, they could ask for the mercy of the courts, essentially to ignore the safeguards in legislation and grant them a parental order anyway. That is what this comes down to. I have serious concerns about this.

We are setting up an assisted human reproduction regulatory authority specifically to engage with intending parents ahead of any surrogacy or embryo transfer. One or two intending parents go to the AHRRA and say: "We have a surrogate in wherever it is, we meet all the criteria and she has been given legal advice and she has been protected in all the following ways, we are covering all of her costs, she has full access to medical treatment and all of the protections that we are putting in place through this big piece of legislation, we are meeting them." Then the AHRRA grants pre-approval so the intending parents do it and come back with their new child and the courts go through the various criteria and then the judge says: "Here's you parental order." That is how we are doing this.

If the best interests of the child test supersedes all of that, it means intending parents could say they have a commercial surrogate somewhere, which is not allowed; that she has no protections, which is not allowed; that they are not covering her costs, which is not allowed; and that she may or may not have legal advice or access to proper healthcare but they are not checking or guaranteeing any of that. They may be proceeding with it for very good reasons because they are desperate to have a child but they are not complying with any of the safeguards and will go to the court in Ireland and say it does not matter because the judge has the legal power to grant a parental order anyway because it supersedes any of the protections.

I would be really concerned if we were to bed that into the legislation. We are saying to any intending parents, who are desperate to have a child, that we in Ireland are doing what no other country is doing. We are legislating for this and setting up a statutory authority to provide expert advice. We are making sure that all of the protections are in place in the country abroad, or indeed in Ireland, so that the surrogate mother is protected. If people cannot comply with that, we will not grant them pre-approval. If we do not grant people pre-approval, they should not proceed with the surrogacy and come back to us and request that the parental order be granted anyway. We are saying to people that they should not do that. Is this the kind of issue that could be looked at in the review after three years? I have no doubt it could. However, in setting up this system at the start, we have to make it clear to everyone who wants to use this and to the other countries around the world where surrogate mothers may live that we are not providing a back door to bypass the safeguards. That is why we need to proceed with the Bill as we have it in front of us.

I know this amendment is being put forward with the very best of intentions but it opens up a potential back door for people to ignore the safeguards and throw themselves on the mercy of the judge. I do not believe that is how we should proceed and I do not believe it would send the right message to other countries. We need to say to other countries that we have really clear safety criteria in place and if people do not meet those criteria and proceed anyway, they will not be granted a parental order in our country. I appreciate that this is harsh and I know not everyone will agree with this position but that is where I am at.

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