Ms Cindy Wasser:

It is a privilege for me to give evidence before this honourable committee as surrogacy is not only my area of legal expertise but is the manner by which my two perfect daughters were born. By providing the committee with my knowledge, I am honouring their existence. I am also humbled to appear before the committee today with my esteemed colleague, Mr. Vaughn, who literally has stolen most of my words from my mouth. I share with him all of the sentiments provided about the importance of family building, the perseverance by which families undergo surrogacy and the great amount of love that we have for our children. I propose to speak about the Canadian regulation of surrogacy in the three ways of regulation, the declaration of parentage, and immigration and citizenship laws.

The debate surrounding legal and ethical issues of ART began more than half a decade ago in Canada. However, we still have much to do and we can learn from the current debate under way in this beautiful country. If not for the fear that provincial governments in Canada may not support all matters involving ART our federal government may not have regulated and included prohibited activities with severe penalties in our legislation. Without those constitutional issues at stake, it is my opinion that there is no need for any government, including the Irish Government, to enact criminal sanctions where they relate to matters of family making.

As Mr. Vaughn pointed out, there is no federal regulation in the United States but we do have it in Canada. The Assisted Human Reproduction Act of Canada also insists that surrogates be the age of 21 years but it has only regulation with respect to payment and it is an altruistic model. There are safety regulations with respect to the creation of gametes and embryos. In addition, there are consent regulations under the legislation with respect to providing informed consent as to what happens with one's gametes and embryos.

The legislation that was established in 2004 established an agency to oversee the process in Canada similar to what I believe the proposed Bill here suggests. However, the agency in Canada was dismantled in 2012 after it came under fire for allegations of reckless spending and idleness. In our experience, if it is not directly accountable to the Minister of Health and is not staffed by those who both understand the process, and issues involved, then the agency in Ireland may also become a huge financial burden for the Irish Government without showing any accomplishment for itself.

Our process of enacting regulation was quite slow in Canada but, at the same time, it was thorough and very inclusive. In my view, it exemplifies how well government can act for the people. The collaborative model achieved a system that works for all. It is clear to us, that Health Canada did not intend for the regulations to be punitive, and will provide flexibility and guidance to all stakeholders, including clinic physicians, lawyers and agency owners.

I believe that collaboration with the Ministry here will ensure that all parties are protected and that transparency is maintained. In turn, the Irish Government will need to spend less knowing that it has confidence in the stakeholders to do what is right. As well we plan, as an organisation of lawyers in Canada, to create a working group that will establish industry standards. I believe that this would be an excellent goal for stakeholders in every country in which fertility law and practice exists. It would shoulder a great deal of responsibility for government and provide guidance as well as assurance to government that it need not over regulate.

I wish to address the issue of embryo donation under Canadian law because I note that the proposed legislation before this committee prohibits the donation of embryos to other families. I raise for contemplation the perhaps unforeseen consequence of not permitting embryo donation, which would result in the destruction of potential life. Here, in Canada, we have tremendous research projects undergone by various clinics where embryo donation can be provided to create wonderful methods to prevent illness and ameliorate the process. For some the idea that those embryos, albeit used for research for the better improvement of process may lead to destruction, the preference for those who hold the value that they hold potential life is to donate them to other families who suffer and do not have the financial means to create embryos where they need both donor egg and sperm.

I now wish to address the issue of establishing parentage via surrogacy in Canada. Like the US, Canada has different rules based on our provinces and territories in this area . Over time the process for the declaration of parentage was enacted in various family law reform Acts across each province and territory. In general, these statutes provide that any person with an interest in a child could apply to the court to be declared a parent or not a parent. Over time the court application has become simpler and more efficient as we recognise the value of access to justice as a fundamental right for all communities. DNA, for example, is no longer required because our courts are satisfied with a letter from a clinic doctor that outlines the process.

It is available where the evidence is not otherwise.

The declaration of parentage process is still, however, costly and time-consuming for the applicants and a burden on judicial resources. Acknowledging that there was little need for judicial oversight in most surrogacy arrangements, several provinces have implemented an administrative process. In Ontario, where I practise, for example, parentage is literally granted at birth providing compliance with the legislation.

I wish to pause to correct some evidence that was provided to the committee last week. I differ with the opinion of my colleague who spoke about the Ontario parentage laws and suggested that because the surrogate needs to wait seven days to sign for consent, during that period both parents and surrogate share parentage. The law states that is the case unless the surrogacy agreement suggests otherwise. Most surrogacy agreements written by lawyers with expertise in the field would, indeed, state otherwise. They would state that parentage is the right of the parents at birth and that the surrogate relinquishes all rights in the contract before birth and will relinquish with the formal consent.

The fact that the law in several provinces suggests that the parents are, in fact, legal at birth negates the need for pre-birth order. One province that provides for a pre-birth order, is Newfoundland, but the birth registration still names the surrogate as the mother and the ensuing declaration of parentage removes her as a parent.

Immigration and citizenship is an important issue to bring to the committee’s attention because it exemplifies how strongly the federal government feels about its new Canadian citizens, the newborns. Everyone born under Canadian jurisdiction or air or water space, is automatically a Canadian citizen and entitled to all the rights of all citizens. That includes the right to have parents.

When Covid hit our country, at the same time as all others, and all airports were closed, international parents were unable to come here for the birth of their babies. I brought this to the attention of the Ministries of global affairs and immigration which, in turn, advised the Ministry of transportation. Within nine days, the Prime Minister signed emergency order changing the Immigration Act to declare the parents via surrogacy to be to be legal parents of an unborn child only through surrogacy, thereby giving them greater rights than those who were creating their babies in the so-called natural way. All parents were enabled to get into Canada prior to the birth of their babies and Transport Canada worked hard with many countries to enable those flights to take off and land. This also shows how safe Canada is for international surrogacy. We value human life at all costs and we will protect those newborns.

I hope the Irish Government will examine those laws accordingly and share the values that we do that those newborns are priceless and privileged and deserve to be treated the same under the laws of the country. The federal government acted swiftly in Canada to also provide passports to the children of the families so that they could go home to Ireland and elsewhere. They will always be Canadian citizens and always be welcome here. If they turn 18 years and are living in Canada, they may sponsor their foreign parents to become Canadian.

Why does Canada value that life and immigration so much? Because it is a proven fact that it has been a financial windfall and it can be for Ireland and other countries too. Immigration and baby-making, family making, is a great benefit to a country.

It is my profound wish to see all governments protect their newborn citizens in the manner by which we do in Canada. Honouring these children means honouring their parents. It is an exciting opportunity for the Irish Government and I hope it will also declare that these children should be given every legal right granted to a baby born in Ireland to its natural mother.

I hope that the committee and the Government will consider that private industry oversight should be the goal of all stakeholders around the world so that Government oversight is minimal. The market will ensure that agencies do not take advantage and protect the intended parents and surrogates. Clinics will ensure safe practices to achieve success rates that are well known and lawyers will work collaboratively to ensure their clients’ best interests are maintained.

I wish the committee the wisdom and compassion to know what is right; the strength and conviction to do what is right and; the courage and fortitude to see that what is right, is done.