Ms Ellen Embury:

I thank members so much for the very kind invitation to speak to the committee today. I have been asked to speak on the possibility of exploitation in surrogacy arrangements. The background with respect to my professional qualifications is set out in the opening statement, which I have submitted. I am conscious of time. My partner, Rachel West, and I have a very large surrogacy practice in Canada. We open more than 400 files a year. Many of them involve babies being born to foreign nationals coming to Canada because surrogacy is either difficult or impossible in their home jurisdiction. In the past three or four months, I have had many contacts with potential Irish clients, both same-sex and heterosexual, who are exploring the opportunity to come to Canada to have their much wanted baby via surrogacy. While I am very proud of the fact that Canada is a jurisdiction that welcomes internationals, in particular from the same-sex community, with open arms, I tell every one of the Irish couples or singles who talk to me that I would like nothing better than for them to be able to undergo the process in their home country, Ireland, without having to spend the enormous amount of money it will cost them to go overseas to achieve their dream of having a family. I hope that the good work the committee does will move Ireland closer to that goal.

Exploitation is a loaded word. It is a negative and shameful word. Respectfully, my strong belief based on many years of practice is that starting from a presumption of exploitation is the wrong approach. The committee will be talking to surrogates as part of this process and members will hear from surrogates about what they are doing. I believe members heard from Ms Cohen who testified last week and presented the committee with the empirical evidence of Professor Busby. Modern empirical research shows that properly managed surrogacy is not exploitative. Surrogacy is empowering. It is incredibly empowering for the women who choose to give this gift. In Canada, the statistic is that one in seven heterosexual couples experiences infertility. There are also singles who do not have a partner, and the extensive same-sex community, which deserves to be treated with respect and dignity in their difficult and, unfortunately, very costly journey to become parents.

I do not mean to suggest that exploitation cannot happen. Of course it can and I will share some thoughts on how to manage it. There are three suggestions I focus on when I talk about how to prevent exploitation. First, one of the best sources of protection for surrogates is to have comprehensive psychosocial evaluations performed by competent and ethical clinicians and physicians, remembering that those physicians and psychosocial evaluators are already self-regulated and there are consequences if they fail to perform a proper psychosocial evaluation. Second, there is a very valuable role for agencies. Under the Canadian model, we have reimbursable expenses. In my experience, taking away the dialogue about money between intended parents and surrogates takes away 90% of the stress in the relationship. The third point I talk about is the role of independent legal advice for both surrogates and intended parents. I am an officer of the court and part of a regulated profession. I have an ethical duty to ensure the women who are my clients are truly doing this voluntarily, without force or coercion, and that the intended parents understand they are not in a position to ask the woman to do anything she is not comfortable doing.

Understanding the time limitations we are under, I will set out what I consider to be the possible sources of exploitation. The first one arises when surrogates are seeking financial gain. In Canada, we have a receipt-based model, which reduces the risk of exploitation. However, it is important to recognise that altruism does not mean austerity or that the surrogate is meant to have the cheapest of everything. This issue came up at the previous meeting of the committee. In Canada, most surrogacy arrangements will see a surrogate receiving between $25,000 and $30,000 to meet surrogacy-related expenses. She is expected to provide receipts for those expenses. On top of that, she will receive compensation for wage loss if she is unable to continue working and compensation for post-birth wage loss, usually for approximately six weeks but possibly up to 15 weeks. I appreciate that the Canadian dollar may not be a currency that is well known to the committee. We are talking about reimbursement of between €15,000 and €25,000. My view is that the combination of a receipt-based practice, psychosocial evaluation and giving surrogates a voice by asking why they are choosing to be a surrogate is a way to avoid exploitation of women who are in it solely for financial reasons, perhaps because they are in a state of desperation. An individual in such circumstances is not necessarily one who should be a surrogate.

Another possible source of exploitation arises when surrogates come from a background of socioeconomic or psychological risk profile. Again, the way to manage that is to ensure clinics are carrying out psychosocial assessments and giving surrogates a voice. We must make sure the reason they are choosing to do this is heard very early on in the process.

I believe there is a possibility of exploitation by a surrogate's domestic partner. The way to manage this is to ensure the partner is part of the process. In Canada, the husband or common law partner of a surrogate does not have any presumptive rights, but our practice is to include that individual to ensure the surrogate will be supported throughout the journey and there will not be issues at home related either to being forced to participate in the process or being discouraged from participating.

In order to avoid the possibility of exploitation, it is important to ensure surrogates are healthy and will not be endangered by the pregnancy. Again, that is part of the clinician's role. Ensuring there are competent, empathetic and regulated fertility physicians examining the surrogate's medical condition is the best way to protect her.

In my practice, I have seen pressure from intended parents to reduce or minimise expenses to their benefit. The answer there is to take receipt management or discussions about money out of the interaction between the surrogate and the intended parents. It is important to have a third party such as agency, or an escrow agency under the US model, in the middle in order to reduce the tension and ill feeling that can occur over discussions related to finances. Having lawyers involved at that stage is really important. As the committee heard from my colleague, Ms Wasser, earlier today, the reality is that we spend a lot of our time stepping in and assisting our clients, both surrogates and intended parents, when things go off the rails. We often do that without charge because we want to make sure the journey is successful for both parties.

Loneliness or vulnerability is a factor that may give rise to the exploitation of surrogates. As Ireland builds its process, it will find that communities of surrogates start to pop up. I often refer to this as being like an algae bloom. When one woman has a really good experience with her surrogacy journey, she will tell her friends. Suddenly, we find there are five or six surrogates in a small town in northern Alberta or northern British Columbia. That community and support among surrogates is critical and agencies have a role in trying to build supportive communities. It is not something that can be legislated for but, with agencies in the picture, we typically see a lot of that community-building. I hope the committee will hear more about that today.

Another possibility for exploitation that is really important to consider is where there is pressure on the surrogate to do something she does not wish to do. This might, for instance, be pressure to implant two embryos in order that the intended parents can have twins. There are always discussions around termination or abortion. In Canada, the law is crystal clear: a woman does not have to do anything with her body she does not want to do. One of my jobs is to explain that to a surrogate upfront. If she is feeling pressure from intended parents, I step in and tell her nobody can make her put two embryos in her body and nobody can make her terminate the pregnancy if she is not comfortable terminating. Again, it is about having lawyers, counsellors and physicians in place to ensure surrogates truly understand the process.

My friend and colleague, Ms Sara Cohen, presented the committee last week with Professor Karen Busby's research. Her research papers confirm what those of us practising in the area know through experience, which is that surrogates are empowered and fascinating women. Canadian fertility clinics have used psychosocial assessments for years to ensure surrogates are not entering the relationship from a place of vulnerability. As a result, they are typically educated, financially stable and, in my experience, having worked with thousands of surrogates at this point, they are often in the caring professions, including nursing, childcare and home care. They are incredibly strong. I like to repeat Professor Busby's description of them as "non-conforming extroverts". Over my years of practice, I have worked with hundreds of surrogates and I definitely believe that is an accurate statement. Surrogates are typically the first to stand up for themselves. Under the Canadian model, lawyers, counsellors, doctors and agencies are there to ensure exploitation does not occur. The few practical measures I have suggested today can be used to protect these women. A modern, non-paternalistic approach to surrogacy is not to start from a presumption of weakness or exploitation. Surrogacy is truly empowering, life-changing and valuable. The women who choose to become surrogates should be celebrated. My hope is that the Irish process will follow what we try to do in Canada.

I want to address one issue that came up at the previous meeting, which is the question around a genetic link. Yesterday, the Supreme Court of Canada released yet another decision indicating that the best interest of the child is paramount and it is not related to a genetic link. In my opinion, any legislation that proposes a genetic link is discriminatory. The classic example is a couple who meet in cancer treatment. As we know, radiation destroys eggs and sperm. The two people in that couple are now physically disabled. A model that says they are not entitled to have children because they cannot produce egg or sperm would be problematic from a human rights perspective.

I thank members for their time. I certainly am conscious of the privilege of being asked to speak to them. I am happy to address any questions.