A tricky time to talk about surrogacy
The Government's approach to this referendum on same-sex marriage has in large part been about trying to keep children's issues out of it.
Those seeking to defeat the proposition have consistently argued that Friday's vote is all about children's welfare. One of the consequences some of them have evoked is that gay couples will gain the right to avail of surrogacy, using another woman to carry a child to term, so they can become parents.
The 'No' side argument here can be summarised as: Married couples have a right to procreate. So, gay male married couples, who cannot procreate naturally, will have a right to access surrogacy if this referendum is carried.
From the outset, Taoiseach Enda Kenny and Justice Minister Frances Fitzgerald have argued that surrogacy is a separate and very complex issue. They have pledged separate legislation and Health Minister Leo Varadkar published the general scheme of this legislation in late February. The Referendum Commission has said that Friday's vote is separate from the issue of surrogacy. But advocates of a 'No' have persistently returned to the issue.
The Government has tried to further ameliorate the potential fallout by giving general hints on the restrictive shape of the surrogacy legislation to come. Launching the scheme on February 25, Mr Varadkar said the surrogacy process would not facilitate "designer babies". Yesterday, Justice Department sources signalled that couples seeking to have a child through surrogacy will be obliged to get court permission to have a surrogate mother bear their child. The courts would decide on a case-by-case basis whether surrogacy was in the best interests of the child and the surrogate mother.
Ms Fitzgerald was understandably reticent on the issue. But she said new surrogacy laws will be "very strict" and commercial surrogacy will be outlawed.
The big question is why the Government is commenting on this issue at all at this tricky stage. It clearly suggests that it cannot avoid the matter and that it must speak in some form to the points raised by 'No' advocates.
With days to go to polling on same-sex marriage, this is a high-risk strategy and may help the 'No' side.
The story of defeated referendum campaigns is summed up by one word: confusion.