Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I note the Minister's amendments to these sections include the phrase, "lacks the capacity to make decision in that regard". I ask the Minister to consider further grounds for waiving consent. I strongly argue that the best interests of the child must be the paramount consideration. The Minister referred earlier to this already forming part of the legislation but it is in the legislation as one of a number of criteria. The whole point about the test relating to the best interests of the child is that it is paramount. That is what has been proposed by a number of eminent agencies. The UN Convention on the Rights of the Child noted that the best interests of the child may conflict with other interests or rights but must be treated as the primary consideration. We bypass the provisions of the UN convention at our peril.

In the 2018 case of CB and PB v. the Adoption Authority of Ireland, the Supreme Court held, "The best-interests guarantee contained in Article 42A is not to be seen as some form of interpretative Trojan horse which can undermine the intent of the Act."

I believe this statement to be equally relevant to surrogacy, especially given the moral hazard argument put forward by the Minister on Committee Stage. We should allow judges to put the child front and centre when determining whether a parental order should or should not be made. The inclusion of this principle and the proposed waiver for unreasonably withheld consent is not to prejudge any application, but to allow the particular facts of a case to speak for themselves. I reiterate the point I made earlier that the best interests of the child must be considered on a case-by-case basis.

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