Professor Deirdre Madden:

I thank the Chairman and the members of the committee. I am very grateful for the invitation to speak today, particularly in the presence of my esteemed colleagues, Professor Golombok and Dr. Tobin. I have sent an opening statement that I will run through quickly.

I support surrogacy as a means by which individuals and couples can build a family in circumstances where they are otherwise unable to do so. I believe regulation of surrogacy is preferable to a prohibitive approach because the latter can have the effect of driving the practice underground, exposing all parties to risk. We should not, I believe, take the approach of sticking our heads in the sand, thinking that if we ignore international surrogacy, it will simply go away. I believe global surrogacy is a reality that needs to be carefully considered and managed to achieve the best outcome for children, surrogates and intended parents. For this reason, I favour pre-birth scrutiny of domestic surrogacy arrangements to ensure that all legislative criteria are met and that legal parenthood would be assigned prior to or at the birth of the child. I believe this would ensure the child's best interests from the moment of birth are served by clarity in regard to who its parents are.

The 2005 report of the Commission on Assisted Human Reproduction, of which I was a member, recommended that the child born through surrogacy should be presumed to be that of the intended parents. Such a presumption would operate by recognising intended parents as the child's legal parents at birth, subject to the surrogate retaining a right to object for a short period. Any objection could be resolved by a court, which is obliged to prioritise the best interests of the child. The Health (Assisted Human Reproduction) Bill 2022 does not adopt this recommendation and, in my opinion, is not child-centred. There is no mention of international surrogacy or of how intending parents who go abroad for surrogacy can apply to have their parentage recognised in the State. It is as if international surrogacy will somehow cease upon commencement of this legislation. I do not believe this will happen.

I have been invited to speak about the issue of the potential double standards that may result from the difference in legal protection offered to surrogates. In my opinion, we need to move away from legislating for domestic, so-called altruistic surrogacy on the basis that it is ethical or good and ignoring the reality of international, so-called commercial surrogacy on the basis that it is unethical or bad. The reason I say “so-called” is because the reality is more complex. For example, not all international surrogacy is remunerated. We need to consider how best to protect all those involved to the greatest degree possible while recognising that we cannot regulate what happens in other countries.

I understand and fully share concerns in regard to human rights of surrogates and any potential exploitation of women in other jurisdictions but we need to be clear on what exploitation is. I would describe exploitation as taking unfair advantage of someone to benefit oneself. Payment of money does not of itself make surrogacy unethical or exploitative, in my view. Under the Bill, an Irish surrogate can be paid reasonable expenses. When loss of income and other expenses are calculated, this could easily reach €10,000, which is probably not very different from the amount that surrogates are paid in some other countries, excluding the United States, although, of course, this does acknowledge the socioeconomic situation may be different in other countries.

For me, what is more important than the fact of payment is whether the surrogate was in receipt of legal advice, psychological screening and support, understood and freely consented to the arrangements and received all necessary medical care and treatment before, during and after the pregnancy.

We might worry, rightly, about arrangements brokered by unscrupulous agents who do not look after the interests of the surrogate, but regulated professional surrogacy can be very positive because it can support the parties through the process rather than leaving them to wander through an arrangement in good faith but with no advice.

In some circumstances, there may be a power imbalance between intending parents in wealthy states and surrogates from emerging economies, and there may well be regulatory gaps through which unethical practices and unconscionable brokers may flourish. These are the gaps we must be alerted to. Sometimes people speak of commercial surrogacy in broad and negative terms as involving sharp practices where women are misled or coerced into becoming surrogates and do not freely consent to their participation in the arrangement. As I stated in my submission to the committee that examined the Children and Family Relationships Bill in 2014 and I reiterate today, we should avoid making sweeping generalisations about women in particular countries or from particular backgrounds as being exploited. I do not believe, simply because a woman is of lower socioeconomic means, she is therefore unable to make a voluntary informed choice to become a surrogate mother. That is a paternalistic and discriminatory position that does not recognise that women of all backgrounds and means are capable of making their own decisions regarding what is best for them and their families.

The challenge is to ensure those who facilitate and bring about these arrangements comply with appropriate standards in terms of providing women who wish to become surrogates with sufficient information, advice, support and medical assistance to enable them to make those informed choices. This is not dependent on the location in which surrogacy takes place or, to my mind, whether payment is made but rather on the existence of good regulation, oversight of standards and compliance with regulatory requirements designed to all those involved.

The best way forward for Ireland is to make sure we have modern evidence-based surrogacy legislation domestically so that fewer people go abroad for surrogacy. Most people would rather enter surrogacy domestically with the support of family and friends in a familiar and safe medical system with the knowledge they are building their family in an ethical way that is supported legally. However, not everyone has a family member or friend who is willing to become a surrogate for them. This is an enormous undertaking for anyone, involving essentially a year of a woman's life from conception to post-birth recovery with the attendant discomfort and risk. There may also be pressure exerted on family members to become surrogates that may lead to difficulties or breakdowns in relationships. There may be some women who are willing to become surrogates for strangers solely motivated by a wish to help others, but in a country the size of Ireland, the number of such women is likely to be small.

For those who are not able to avail of domestic services for whatever reason, international surrogacy will remain their only option. In the UK, the Law Commission has proposed a solution that essentially recognises that domestic and international surrogacy are different and it is not possible to regulate both in the same way. This is not to say there is a double standard in a pejorative sense but rather to ask how we can achieve the best outcome and provide the best protections in both scenarios, recognising we cannot regulate what happens in other countries.

Providing a mechanism to recognise automatically legal parenthood for those who travel to countries where surrogacy law protects the rights and interests of children, surrogates and intended parents would encourage people to travel to those countries rather than others that may offer less protection. As I understand it, under this proposal the Secretary of State would have the power to designate countries or states for which surrogacy arrangements will be automatically recognised if those countries have adequate safeguards to protect surrogate children.

The current Irish Bill seems to use the absence of a mechanism by which to achieve legal parentage to try to deter people from going abroad. There are several problems with that approach. First, and most important, it is punishing the child for the perceived wrongs of his or her parents. The child's rights should not be negatively affected by the circumstances of his or her birth. Second, it is not realistic. Although it may be hoped that the absence of a legal mechanism will act as a deterrent, people will still go abroad for surrogacy. Irish courts will then have to resolve conflicts between two competing legislative policies, one that, by its silence, condemns international surrogacy as unethical, and the other which, rightly, obliges judges to prioritise the best interests of the child that is born, irrespective of how he or she was conceived. Third, it leaves foreign surrogates with no protection whatsoever in terms of the kind of exploitation the Government says it is trying to prevent as there will be no oversight or scrutiny of those surrogacy arrangements entered into abroad.

Finally, a preferable solution would be to try our best to ensure international surrogacy arrangements meet as many of the same criteria as domestic arrangements as possible. Some of these criteria should be non-negotiable, such as evidence the surrogate has received independent legal advice in a language and manner she can understand, she has given free and voluntary consent to her participation, she has received appropriate medical care and psychological support before, during and after the pregnancy, and the arrangement is in compliance with local laws in the country in which it takes place.

I am very grateful to the committee for dedicating so much time and energy to listening to and learning from expertise and experience to find the best solution of Irish families and children.