Legal and political considerations may lie behind removal of surrogacy plans

With his draft version of the Children and Family Relationships Bill, Alan Shatter produced what would be the most significant overhaul of family law in a generation. The latest version, published yesterday by his successor as Minister for Justice Frances Fitzgerald, retains most of the key ideas and makes some additions to take account of input from the Oireachtas Committee on Justice and interest groups.

For example, Fitzgerald proposes to extend adoption rights not only to same-sex civil partners but to cohabiting couples as well. Another change would allow a donor-conceived child to trace their identity, with the result that the use of anonymous donor eggs or sperm will be banned.

The most striking omission, however, is surrogacy, which was a key part of the earlier draft of the Bill and has now been entirely removed.

The Government produced its surrogacy proposals in February, just days before it went to the Supreme Court to appeal a landmark High Court decision that defined maternity as based on genetic or blood links and ruled that genetic parents were entitled to be registered as the legal parents of twins. It is unlikely the timing was a coincidence.

A number of Supreme Court judges asked the State's legal team why it had produced the scheme of the Bill in court (or "pulled it out of the hat", as Mr Justice John Murray put it), but the unspoken message from Government Buildings was clear: leave this to the Oireachtas, we're dealing with it.

With the Supreme Court’s decision not due until next month at the earliest, it may well make sense to await the judges’ view before drafting a new regime.

Separating the issues could also afford more time and space for debate – so far fairly muted – on the searching, complex questions raised by surrogacy and assisted reproduction. For the Government, there is potentially a political benefit as well.

Removing surrogacy from the Bill could speed up its preparation and enactment, which would make it more likely that another of the Bill’s key planks – giving same-sex couples the right to adopt – would be in place before the referendum on same-sex marriage next year.

The danger, however, is that surrogacy – an issue that governments have avoided for years – will lose its place in the parliamentary queue.

At one of his first meetings with officials after his appointment as minister for justice in 2007, Brian Lenihan was shown a draft of another huge piece of legislation, the Immigration, Residence and Protection Bill, which included major changes to asylum and citizenship rules.

Having read through it, Lenihan asked his officials to remove the citizenship provisions altogether. Citizenship was a big, important issue, he said, and he wanted time to think it over.

Seven years later, all the key proposals in that Bill have yet to become law.