Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I will speak to Senator Seery Kearney's amendments Nos. 49 and 53. I reiterate the position laid out on Second Stage in this Chamber last week, which is that the current policy intent of the Bill is that a court and a judge will have the discretion to waive the residency requirement for retrospective applications. For future applications that will not be the case for the pre-order that has to be established. It is specifically for retrospective cases. One could ask why we should have it at all. Why put it in when we have a strong test for the best interests of the child? The reason it was put in was to guard against things happening since the heads of the Bill were known. The Second Stage Dáil session on this was in March 2022. We knew this would take time and did not want a situation whereby people might say we have a few years until the Bill is commenced where we can avail of this retrospective. We needed to put some safeguards in place for the surrogates. That is really what it is about. It is not really about surrogacies that happened before 2022 when the detail and the approach were well known. There will inevitably be cases where the surrogate cannot be found, where documentary evidence cannot be found or where the surrogate is not willing to provide an affidavit. As the Senator says, a sister might have come back from Australia to be a surrogate but may not have been resident in Ireland for the full 12 months beforehand. As the Bill stands, the clear legal advice I have is that the judge already has that discretion. That is the first point. The second point is that discretion is absolutely the Government's policy intent. For anyone in the Courts Service, for example, who might be interpreting future applications, I want to be clear that the unambiguous intent is that the courts will have that discretion. It is not an absolute requirement for retrospective applications. There is a third point. I know this has been raised as a real concern for some parents who will be applying to the courts. Even with those two things, the final safeguard we are making is to amend this legislation through the amending Bill to make it explicit, so that there can be no question of it being misinterpreted in the future. I hope to have that ready as soon as the Dáil reconvenes in September. I do not know if we will use Senator Seery Kearney's exact wording, but it will be something like that, to make explicit what is implicit.