Oireachtas Joint and Select Committees

Thursday, 5 May 2022

Joint Oireachtas Committee on International Surrogacy

Issues relating to International Surrogacy Arrangements and Achieving Parental Recognition: Discussion (Resumed)

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Good morning everyone. We will have two sessions today. In our first session we will resume consideration of issues faced by same-sex couples, both male and female, entering international surrogacy arrangements and achieving parental recognition. On behalf of the committee, I welcome Ms Fiona Duffy and Ms Claire O'Connell from LGBT Ireland. From Independent Living Movement Ireland, I welcome Ms Selina Bonnie and Dr. Áine Sperrin, who are both online with us.

Before we begin I will read a note on privilege and some housekeeping matters. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction. For witnesses attending remotely from outside the Leinster House campus, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as a witness who is physically present does.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts of Leinster House will be asked to leave the meeting. In this regard, I ask any member participating via MS Teams to confirm, prior to making his or her contribution, that he or she is on the grounds of the Leinster House campus. I remind everyone that masks should continue to be worn throughout the meeting by all present and should only be removed while speaking.

I call Ms Duffy to make her opening statement.

Ms Fiona Duffy:

I thank the committee for affording me the opportunity to appear here today. My interest in the area of assisted human reproduction dates back the 1990s. It was not for at least another ten years before it began to form part of my work as a solicitor. Over the years I have worked with individuals and couples dealing with fertility issues, including surrogacy. I realised at a very early stage that not only is this area complex from a medical perspective, but that it is also extremely complex from a legal perspective. It is constantly evolving and developing.

I have been asked to address the committee on the particular issues faced by same-sex couples, both male and female, entering international surrogacy arrangements and achieving parental recognition in Ireland. As a preliminary, I believe it might be useful to address how parental recognition is currently obtained for parents who have had a child through surrogacy.

The first point to note is that irrespective of where the child is born, whether in Ireland or abroad, the child’s position vis-à-vishis or her parents is exactly the same under Irish law. That said, there is an advantage to be had in going abroad, as in most countries where surrogacy is possible the intending parents are named on the birth certificate at birth or pursuant to a post-birth court order. In Ireland, however, the surrogate mother is named on the birth certificate, and this cannot be changed.

The position of same sex male parents through surrogacy is not very dissimilar to that of opposite sex parents, apart from the fact that some countries will not provide surrogacy services to a same-sex male couple. Under Irish law they are treated the same. Only the genetic male parent can have

his relationship with the child recognised under Irish law. The non-genetic male, or second parent, is in exactly the same position as the female in an opposite sex relationship: in all cases the birth mother is the parent of the child.

With regard to the court process, the first step is for an application to the court to have the genetic male parent declared to be a parent. If this order is granted, then the court is asked to appoint that parent as a guardian of the child. Additional or ancillary orders are also sought to include an application that a passport can issue for the child without the consent of the child’s birth mother.

It is only after those orders are granted that an application for an Irish passport can be made.

The process to establish parentage is exactly the same for a single male parent through surrogacy. While I understand that it would be more unusual for a female couple to require to undergo surrogacy, such possibility does require consideration. Currently it is not possible for a same-sex female couple or a single female undergoing surrogacy to establish a legal relationship under Irish law with that child. This is the position irrespective of whether or not she is genetically related to the child. Happily, the assisted human reproduction Bill seeks to rectify this position for domestic surrogacy arrangements.

The assisted human reproduction Bill proposes to legislate only for domestic surrogacy where all parties are habitually resident in this jurisdiction. The committee should bear in mind that there are many Irish citizens in same-sex relationships living abroad who have had or will have children through surrogacy or through donor conception where they live. Even if the entire procedure is carried out in accordance with the law of that place it may not be possible for the non-genetic parents to have their parent-child relationship recognised under Irish law. This can have the knock-on effect of denying Irish citizenship to these children. Last week, a representative from the Department of Justice referenced to the committee a case that has been leapfrogged to the Supreme Court in which this very issue is before the court for determination.

It is most unfortunate that the Bill as drafted contains no provision for the retrospective establishment of parentage in the case of a child born through a pre-commencement surrogacy arrangement. The committee has been addressed by many parents through surrogacy, both male and female, who have no recognised legal relationship with their child born through surrogacy. The Children and Family Relationships Act contains a template for obtaining a retrospective declaration of parentage in the case of a donor-conceived child. A not dissimilar process could be established for surrogacy cases.

It is worth giving some thought to the importance of a genetic link in a surrogacy arrangement. Currently an opposite-sex married couple can go abroad for IVF treatment using donor gametes. A child conceived through such procedure and born here is the child of that couple, even though there is no genetic link. The Children and Family Relationships Act contains provision for the establishment of parentage in the case of a child born as a result of embryo donation. The assisted human reproduction Bill contains provision for the donation of embryos. In addition, adoption is a long-established and recognised method of obtaining parentage of a child where there is no genetic link.

Having been involved in this area for so long and watching various reports gather dust, I have wondered if I would ever see assisted human reproduction legislation in this country. I have watched the committee and I admire the enthusiasm with which all members have engaged. I wish them the best of luck in the preparation and finalisation of their report. It is not an enviable task. Medical science has enabled people who might never have been able to have children to become parents. Assisted human reproduction and surrogacy are here. The law must now catch up. I would be delighted to address any questions committee members might have today. In addition, I am happy to be at the disposal of the committee should it require any further input or assistance.

Ms Claire O'Connell:

Good morning, Chairperson and committee members. My name is Claire O’Connell and I appear today on behalf of LGBT Ireland as a board member and as someone who has researched this area extensively for my PhD. I am very grateful for the invitation to return to the committee to discuss specifically the issues faced by same-sex couples entering international surrogacy arrangements and achieving parental recognition. In order to avoid repetition I refer to the opening statement I made to the committee a number of weeks ago and ask members to consider the recommendations contained therein as well as the recommendations set out in our briefing paper "Pathway to Parenting".

The starting point to this discussion is to set the scene of how Irish parentage law has progressed over many decades. We have had a number of landmark pieces of legislation that deal with parentage, guardianship and associated rights and responsibilities in respect of children. These include the Guardianship of Infants Act 1964, the Status of Children Act 1987, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and, most recently, the Children and Family Relationships Act 2015, which was bolstered by the Irish vote in favour of marriage equality.

Each of these pieces of legislation progressed the rights of children and their care-giving parents by being more inclusive than the preceding system. With each Act, we offered more and more protections, not fewer. We are a progressive country in terms of legislating for the rights and freedoms of children and individuals and we are now once more at the precipice of another major change in Irish family law. We are giving ourselves the opportunity to be even more inclusive through creating a legislative framework for assisted human reproduction, specifically surrogacy. It is imperative that we avail of the opportunity to ensure the 2022 Bill includes a framework for the granting of parental orders in both the international and retrospective contexts.

Since 1964, the mother in Irish law has been the primary rights holder outside of marriage. The addition of marriage offered special protection, even to non-genetic fathers, as a result of the presumption of paternity. However, it was primarily and ultimately the biological link that bestowed the status of parent on caregivers in respect of their children. These principles operated until the Children and Family Relationships Act 2015 which, for the first time in Irish law, bestowed parentage knowingly on a non-genetically linked parent. This Act applied to all persons engaging in donor-assisted human reproduction. However, it was especially useful to those who could not benefit from the presumption of paternity. This meant primarily same-sex female partners. Either retrospectively or prospectively such partners would have to comply with a specific list of criteria which is, arguably, quite restrictive in nature in order to access parentage. However, while female couples grappled with a restrictive system, male couples remained without any pathway to parentage in assisted human reproduction.

The 2015 Act also did nothing to remedy the presumption of paternity, which continues to apply in the area of assisted human reproduction despite the gestational or genetic parent being in a loving and committed relationship with the other intending parent. To be clear, where the presumptions of paternity continue to apply the exclusions under the 2015 Act, which were set out in detail in my previous statement, disproportionately impact on same sex couples. This is because birth registration in Ireland, which in itself results in a presumption of paternity, is not based on DNA tests but rather on the consent of the mother and her marital connection to the presumed father. Yet there is no mechanism for a mother to consent to have her female spouse and intending parent registered as the child's second parent under the 2015 Act. Therefore, the work of the Oireachtas would usefully include amendments to the 2015 Act to allow the inclusion of non-clinical donor assisted human reproduction, retrospective declarations of parentage where a known donor was used, and donor assisted human reproduction where the child is conceived or born in another jurisdiction. This would be to ensure that no child is treated differently based on the sexual orientation of their parents and the method of their conception.

When considering a framework for surrogacy domestically and internationally, it is important to consider the groups who will be excluded in its absence. The committee has heard the stories of individuals who have experienced heart-breaking infertility, experienced multiple miscarriages, had to suffer through unthinkable illnesses, have been aged out of adoption or have been excluded from adoption due to their disability. This is the first group to be excluded. The second group is the LGBTQI+ community, particularly gay men in the context of surrogacy. They are individuals who, like every other person in this country, benefit from a constitutionally-recognised right to procreate under Article 40. They also benefit from Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life, and Article 14, which protects individuals from discrimination. These rights are not absolute. However, their existence requires that any interference or restriction be justified by the State in serving a legitimate aim in a proportional manner. Such aims have been suggested as the vindication of the child's right to identity and the prevention of exploitation of women. I respectfully suggest that both of these concerns can be comprehensively dealt with in legislation. I have made specific proposals, on a section-by-section basis, setting out exactly how this can be done. I am grateful to LGBT Ireland for having endorsed these proposals.

These proposals set out a process for vindicating the child's right to identity both retrospectively and prospectively. The 2015 Act and the current proposals in the 2022 Bill do not include any protection for the child’s right to identity born through assisted human reproduction prior to the commencement of each. These proposals also set out a court application process for retrospective parental orders with regard to retrospective domestic and international surrogacy agreements. They also set out a preliminary pre-conception approval process by the assisted human reproduction regulatory authority and a subsequent court approval process for prospective international surrogacy agreements.

These proposals have a number of principles which should be applied in each set of proceedings and these focus on the rights of the child, the surrogate and the intending parents. It presumes autonomy yet requires informed consent, as well as setting out safeguards to ensure it achieves a balance of rights on a case-by-case basis.

In conclusion, a lack of regulation will not stop couples from travelling to other jurisdictions and engaging in surrogacy agreements. However, it will result in less guidance in terms of safe and best practice for intending parents, it will leave a surrogate with responsibilities she does not want and it will result in the child having no legal relationship to the person who assumes the parental role in their life for all intents and purposes. There are a number of workarounds for intending parents but nothing as yet that comprehensively offers that child the legal certainty and lifelong security of family that they deserve. Moreover, there is no insurmountable cause for why that should be the case.

I am obliged to the committee for the invitation and would be glad to answer any questions members may have.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Thank you. I call Ms Bonnie and Dr. Sperrin, who are sharing time.

Ms Selina Bonnie:

I am grateful for the opportunity today, European independent living day, to return to speak to the committee on behalf of Independent Living Movement Ireland, ILMI, whose aim is to support disabled persons to achieve independent living, choice and control over our lives and full participation in society as equal citizens. I am joined by my colleague, Dr. Áine Sperrin, to outline why assisted human reproduction and international surrogacy are relevant to the lives and dreams of disabled persons. Before I hand over to my colleague, who will detail vital learning from the Re(al) Productive Justice project, I want to briefly reiterate a few of key facts outlined at a previous committee session.

My statement is based on my experience as a disabled person, mother and reproductive justice activist. I am vice chair of Independent Living Movement Ireland, a member of the Assisted Human Reproduction, AHR, Coalition and a regional ambassador for the NUIG Centre for Disability Law and Policy’s Re(al) Productive Justice project. I am also a survivor - and I do not use that word lightly - of the assisted human reproduction system in Ireland.

ILMI is a member of the AHR Coalition because our members and the wider disabled persons movement have an important contribution to make to the development of this essential legislation. We believe that joining with like-minded reproductive justice groups and working in an intersectional way will be the most effective way to achieve rights-based AHR legislation and services in Ireland.

We are here today in a very public setting to implore the committee to consider the most private of rights which go to the very core of human existence and which have been largely denied to disabled people thus far. Historically, disabled persons have been considered passive dependent recipients of care, eternal children, vulnerable people to be fixed or hidden away in the family home or involuntarily incarcerated in various facilities and institutions. We were considered asexual or our sexual desires were considered problems to be managed. Disabled women in particular have been considered most vulnerable. These varied and widespread misconceptions have had a detrimental impact on disabled persons’ access to reproductive justice and fulfilment. It is important to acknowledge the historical treatment of disabled persons to understand why it is essential to hear the voice and experiences of disabled persons in change-making spaces such as this committee.

The purpose of ILMI’s statement today is: to put on record the voice of disabled persons who have lived experience of infertility and the need for inclusive access to AHR and surrogacy, both important components of reproductive justice; to stress the importance of the committee’s deliberations and recommendations being underpinned by an understanding of intersectionality; and to remind committee members of Ireland’s responsibilities under Article 23 of the UN Convention on the Rights of Persons with Disabilities, which is concerned with respect for home and the family, including the right of disabled persons to found a family. Intersectionality is a framework for understanding how social identities overlap with one another. What makes disability unique is that anyone, regardless of age, ethnicity, sexual orientation, gender identity or socioeconomic status, can become a disabled person at any stage in their life.

My personal journey to motherhood took 15 years and involved two miscarriages, one pre-term daughter, Ashika Noor, who lived for one hour, one failed IVF treatment and finally, in 2007, the birth of our precious daughter, Saira Noor. My journey also included exclusion from intercountry adoption due to my being considered incapable of being a mother due to being a disabled woman. My experiences are not unique but they are very private. However, I am sharing our story - mine and that of my non-disabled husband - with the committee members because I hope that, through their actions, other disabled persons and disabled intending parents will not experience as much heartache, exclusion and prejudice in the future. Ableist attitudes exist across assisted human reproduction, maternity and parenting services, and the research findings that my colleague will outline this morning bear this fact out.

Dr. Áine Sperrin:

I am speaking as a member of the Re(al) Productive Justice project at NUI Galway, which has gathered qualitative data from disabled people and legal, medical and social work professionals about disabled people’s experiences of fertility, contraception, pregnancy, birth, abortion and parenting. We have also analysed the legal and policy framework governing reproductive justice in Ireland but as Ireland is only developing this area in regard to assisted human reproduction, we can only anticipate potential issues from the perspective of disabled intending parents. Like Ms Bonnie, I want to highlight to that ableist discrimination is pervasive across all aspects of a journey to parenthood and that these issues should be addressed in regard to international surrogacy and the wider AHR Bill as we think they intersect.

What we consider very telling is that across 80 interviews in the last two years, we had no lived experience of surrogacy relayed to us and only minor references to it were made by professionals. We do not accept that this absence of evidence means that surrogacy is not affecting disabled people, but rather that this is evidence of the absence of surrogacy as an option towards parenthood on an equal basis with non-disabled people. Where assisted human reproduction services have been referred to in our research, a lack of accessible information, excessive cost and the need to travel abroad have created additional and insurmountable barriers for disabled people.

We know there are huge gaps in accessible information around reproductive services for disabled people who have long been presumed not to need it. Under section 12 of the proposed Bill, it is imperative that the AHR information document is available in multiple formats to ensure everyone can access the information equally and as barrier-free as possible. Any framework that is established to regulate international surrogacy must be clearly explained across these formats.

We are acutely aware that there is a cycle of reproductive services being inaccessible to disabled people, disabled people, therefore, not seeking those services and services then assuming there is no demand for accessible measures or reasonable accommodations to be put in place. We have first-hand accounts of this occurring within assisted reproduction services.

We want to highlight that the risk both to the pregnant person and the resulting child should be interpreted fairly under the proposed section 15 and that disability is not automatically considered a risk. We are very concerned that being a disabled parent has been designated as a risk to children within Tusla’s child protection policies. The proposed section 16 assessments seem to us to be preconception parental capacity assessments. These assessments are inherently discriminatory, as told to us by parents who have endured them and professionals who have conducted them. The assessments do not recognise the true parenting potential where appropriate supports are put in place. We know that disabled parents are being held to a much higher standard than non-disabled parents and we are very concerned that this would be replicated when accessing surrogacy.

The project has heard descriptions of social workers sharing information about disabled people and unnecessarily prejudicing the reproductive services which they receive. This ties in with the proposed section 37, where information can be exchanged between an AHR provider and a medical practitioner without the consent of the individual. We have been told about disabled people being required to have another person present during consultations relating to sexual and reproductive health. This violates the individual's right to privacy and is particularly worrying if the medical practitioners were to disclose private surrogacy-related information in front of inappropriate attendees, such as a family member or a disability support worker.

All of these issues, which disabled intending parents might uniquely face, will potentially impact on the real accessibility of surrogacy to disabled people.

I thank the committee for the opportunity to highlight these issues that the project has come across.

Ms Selina Bonnie:

In conclusion, we appreciate that international surrogacy is, in turn, a part of broader reproductive justice for disabled and non-disabled people alike. We have discussed how prominent discrimination is in other areas of reproductive journeys and sought to highlight them today to avoid such ableism being embedded in the regulation of international surrogacy.

Surrogacy is sometimes what disabled people need in order to become parents. The entire justice and social work systems relating to disabled parents requires a significant overhaul to ensure that the systems are underpinned by clear equality criteria. Amending this Bill to ensure that disabled people can get on the path to parenthood through surrogacy is a very basic starting point.

On behalf of the Independent Living Movement Ireland, my colleague, Dr. Sperrin, and I thank the committee for providing the space for the voices and lived experience of disabled persons to be heard. We are happy to discuss the issues raised in greater detail.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank both of the witnesses for their contributions. We, as a committee, recognise the impact that this puts on private lives and I mean outlining their stories to us for which we are very grateful as it will help us with our deliberations. As per usual, members have seven minutes for both questions and answers but there will be some flexibility with that.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I thank the witnesses for their contributions. By way of introduction, the committee gets a breakdown of each person's curriculum vitae courtesy of the secretariat who are fantastic in the support that they give to us. I note Ms Duffy has a role in the Merrion Fertility Clinic and the ethics committee in the hospital, in addition to which she is a lawyer.

One of the features that arose last week was the possibility of clinics abroad getting, not an accreditation, but a pathway to have a list of almost approved clinics. I am aware that the word "approved" is heavily laden. When Professor Mary Wingfield was in she talked about the fact that when they engage with clinics abroad or send embryos to clinics abroad they can tell very quickly whether a clinic is good and has good standards because they know by the documentation and the questions that are asked for. Has Ms Duffy anything to contribute in that regard as that would be helpful as a methodology?

Presumably, if Ms Duffy is a lawyer for the surrogacy process in Ireland then it is quite likely when there is relationship breakdown that people come back to her although they would have to arm wrestle to decide which of them would get her. In relationship breakdown, because of the fact that only one parent is recognised in Irish law and the second parent is not recognised at this moment in time, there is an appalling power imbalance and I know of cases where this has occurred. We need to bring this matter into the conversation. Ms Duffy can think about my questions for a minute.

My next question is for Ms O'Connell. We have protocols for genetic link. I know, particularly over the last few months, clinics have biological embryological protocols yet when a baby is born via surrogacy the presumption of paternity goes with the husband of the surrogate even though well established protocols already exist. On one hand, in that country the intended parents may be on the birth certificate so they have all the rights that flow from that when they are in that jurisdiction. The moment they step out of that jurisdiction and they are home in Ireland those rights and presumptions are removed immediately and it is back to the surrogate and her husband and, in particular, her husband must be removed from the picture via affidavits and genetic testing. It is important that we do something about this matter. If we were to undermine the presumption of paternity it would have an impact on children who are born without assisted human reproduction. Has LGBT Ireland given any thought to this matter? I would appreciate if we could start this conversation as well.

My next question is for the ILMI. We need to repeat the sentence that for people with disabilities there is almost a presumption, and it is in the Tusla guidelines, that they are a risk to children. We must highlight how appalling that is. It is ironic that we are in a committee that seeks to resolve discrimination and bring equality for children, and welcome the fact that we are all equals together. I believe that we are equals in disadvantage and in dealing with discrimination and ableist privilege, which is small by comparison with the lived experience, particularly that described by Ms Bonnie. The idea of a parental capacity assessment is equally abhorrent in my view. We must take the opportunity to amplify how abhorrent that is. This matter is not strictly in the terms of reference for this committee but we must ensure that all reproductive services are available to people with disabilities. Also, the costs are so prohibitive so it is important that the committee recommends that funding is provided for IVF. Some of these matters can go towards a second round.

Ms Fiona Duffy:

The Senator has asked two very interesting and challenging questions. First, in terms of accreditation for clinics, it is very difficult. Clinics here are licensed by the Health Products Regulatory Authority, HPRA. I cannot speak with any level of authority but I presume that in other countries there would be a similar licensing process and that might be the way to go. I mean rather than look at a specific clinic one could look at the licensing process, maybe only use a licensed clinic and keep up to date with what is happening in those clinics. That is the only thing that I can think of from that perspective.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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Does Ms Duffy suggest one looks for a licensing authority in a country and seek a list of included clinics?

Ms Fiona Duffy:

Yes.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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So Ireland is not standing over it because we cannot but at least we could make recommendations. I am thinking about the guidelines that we could put together.

Ms Fiona Duffy:

Maybe it would be appropriate to go to a clinic-----

Ms Fiona Duffy:

-----or people could be encouraged. I do not know how one could mandate this to indicate that it would be a licensed clinic. The HPRA website has a list of the licensed clinics that it has approved and there is a list of what they can do. That might be a starting point.

Ms Fiona Duffy:

There is no international regulatory body. As I understand it, there is the European Society of Human Reproduction and Embryology, ESHRE. Different fertility clinics around Europe are affiliated to ESHRE but it is not a regulatory body although it could be of assistance.

The Senator asked about the surrogacy process in terms of the difficulties that might arise when a relationship breaks down. Interestingly, over the years when people came to me I would say to them that we needed to get things sorted out because everything is fine so long as everything is rosy in the garden but if there is a break-up in the marriage or relationship then that is where issues start to appear.

A psychiatrist involved in a case I was dealing with once described surrogacy as being the happy side of family law and that is true because it is making families. It is wonderful to be a lawyer involved in that and it has brought such pleasure to what I do. The other side of it is not the happy side. I do not do that end of it but the Senator said she is aware of situations and I have been approached by people and I do not deal with it because it is sad. Any marriage or relationship break-up is incredibly sad but the Senator is correct in what she said. In the cases that have come to my attention there is a huge control issue, which I have only come across in heterosexual couples where the male is the father recognised in Irish law. In some cases the female may have been biologically related to the child and in other cases she may not have been. In some of those cases he has exercised control, asserted that the child is his, that the female is not the parent and stated that he can do what he wants. The control end of it is quite frightening, particularly if there is no guardianship for the second parent. It is a major concern.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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The guardianship is reliant on the consent of that parent.

Ms Fiona Duffy:

Yes. He has to consent. If he does not consent to it he has to set out why he does not do so. I have often thought that if it were a matter that were to appear before the Irish courts, I am sure the courts would look at the involvement which the second parent has had in the upbringing of the children or child. I would find it difficult to imagine that an Irish court might not give the second parent rights in relation to the child, whether they are custody rights or whatever, even though he or she is not a parent.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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Who is prepared to take that risk and be that guinea pig?

Ms Fiona Duffy:

That is true. That is not me speaking as a family lawyer.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I concur. I am happy to wait until the second round for my other questions.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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We will let Ms O'Connell in and then Dr. Sperrin and Ms Bonnie can come in during the second round. We have a bit of time this morning so we will work it that way.

Ms Claire O'Connell:

I thank the Senator for the questions. I might start by explaining to everyone that the presumption of paternity is based on two things. First is registration on the birth certificate and second is marriage. It is dealt with at the moment by section 46 of the Status of Children Act 1987. So interestingly, in the Health (Assisted Human Reproduction) Bill 2022 we have a section that excludes it from consideration. There is a section in the 2022 bill that states that section 46 of the 1987 Act does not apply to parental orders in the context of domestic surrogacy. The surrogate's husband domestically is not presumed, therefore, to be the father and we do not need to dispense with his consent. When I first read that I thought it was great that a long-established principle can be changed just because we choose to do so and because we create a new framework.

The Senator asked if I am concerned about the effect it might then have on contacts outside of surrogacy or assisted human reproduction, AHR. There is a simple answer to that; when we make legislation like the Children and Family Relationships Act 2015 and when we hopefully pass the Health (Assisted Human Reproduction) Bill 2022, we are setting out completely new contexts. We are not applying it to every person who comes through the parentage pathway. We are applying it to the process of parentage where there is no genetic link or where there is no gestational link. It is quite simple and has been done already in the proposals. It is simple to disapply that from those contexts-----

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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In a limited and discrete group.

Ms Claire O'Connell:

Exactly. It is a consideration for us. The last thing I will say is that the presumption of paternity can be rebutted. It is a rebuttable presumption on the basis of a genetic link. I would like it to be clearly set out that it does not apply in the context of surrogacy. I would also say that I am not of the opinion that a genetic link should be required in surrogacy for many reasons. First, we already allow double donation in donor-assisted human reproduction. We have already increased our protections of the social role and minimised the biological role in these specified contexts. For that reason, if there was no genetic link in the process, the presumption could not be rebutted and there would have to be a specified provision saying that the presumption of paternity does not apply to these contexts. I hope that makes sense.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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It does.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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We will come back to Ms Bonnie and Dr. Sperrin during the second round. I will move to Senator Keogan.

Photo of Sharon KeoganSharon Keogan (Independent)
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I thank the witnesses for coming in again. Ms Duffy is from the legal side of this. Can she give me a step-by-step breakdown of the process? When somebody comes to her, what happens? How many people has she assisted over the years? What are the legal costs around the service?

Ms Fiona Duffy:

Is this in respect of people going abroad for surrogacy?

Photo of Sharon KeoganSharon Keogan (Independent)
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Yes.

Ms Fiona Duffy:

If somebody arrives at my door and says that he or she wants advice, the first thing I have to do is ascertain whether there will be a biological link between the male intending parent, or at least one male intending parent, and the child who will be born. I have to ascertain whether that male is an Irish citizen so that he can get the child back to Ireland. Those are the first two considerations we have. Generally, when people come to me they have done their homework and they have decided where it is they will go. Their primary interest is to find out how they can establish a relationship with the child when they come back to Ireland. One of the most difficult things when I am talking to a couple like that, whether it is a same-sex couple or not, is that I have to turn to the second intending parent and tell him or her that I am sorry because there is nothing I can do for him or her at the moment and I can only give advice to the intended biological male parent. I go through the process for them when they come back to Ireland. I am an Irish lawyer and I can only advise them on the process here. My advice to people going abroad is always that they first need to take independent legal advice where they are going. As we are dealing with same-sex couples in this sitting of the committee, I will concentrate on them. Invariably, most men will go to America or Canada. There is generally an agency they will deal with and then they go through the process of a donor agreement, a carrier agreement-----

Photo of Sharon KeoganSharon Keogan (Independent)
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Would Ms Duffy have access to those agreements?

Ms Fiona Duffy:

My clients often show them to me but I cannot advise them on them because they are governed by the law of the country where they are based. I have seen them over the years but it is not part of my function to judge those agreements because they are not governed by Irish law. When I started dealing with this I might not have looked at them to the same extent that I currently do. One of the things I noticed about the agreements is that when the baby was born, the agreement came to an end. I have always said it is important that the surrogate would understand that her involvement does not purely end when the baby is born but that her involvement is also required for the legal process back in Ireland. Before she even enters into the agreement that should all have been taken care of, she should realise she will be a party to the legal proceedings in Ireland with rights and she should know that her co-operation or objection will be a part of same.

Photo of Sharon KeoganSharon Keogan (Independent)
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For me, surrogacy primarily focuses on the needs of the adults rather than the rights and needs of the child and Ms Duffy put it eloquently earlier in mentioning what happens when the relationship breaks down.

What is Ms Duffy's view on step-parent adoption as a process or a route to parentage in some international surrogacy cases? Is that a better way?

Ms Fiona Duffy:

A better way than what?

Photo of Sharon KeoganSharon Keogan (Independent)
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A better way than what we are proposing. Here, they do not want to have the surrogate mother on the birth certificate. They would prefer not to but I would prefer to have the surrogate mother on the certificate. There is a will here not to have her named on the birth certificate. I am asking if a step-parent adoption would be a route to parentage in some international surrogacy cases.

Ms Fiona Duffy:

I am sorry, but I must clarify what the Senator is asking-----

Photo of Sharon KeoganSharon Keogan (Independent)
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It is provided for already under the Adoption Act.

Ms Fiona Duffy:

Yes, and I have no issue with that. I presume what the Senator is suggesting is that if the birth mother is named on the birth certificate and then there is a step-parent adoption, a new birth certificate would issue. In that way, the first one is always there by way of a record-----

Photo of Sharon KeoganSharon Keogan (Independent)
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Absolutely, yes.

Ms Fiona Duffy:

Okay. I just wanted to make sure that I understood what the Senator was saying. I do not have a difficulty with that and it is probably a way of guaranteeing that the position of the second parent is more secure-----

Photo of Sharon KeoganSharon Keogan (Independent)
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While also protecting the true identity of the mother-----

Ms Fiona Duffy:

Yes. It is interesting that in a lot of states in America it is possible to have the birth mother named on the birth certificate and then a subsequent birth certificate issues after all of the court processes have been done. That is a possibility at the moment and it does happen. Often male couples are very happy to have the birth mother named on the birth certificate. In fact, what often happens is that the birth mother is named, the biological or genetic father is named and then there is a step-parent adoption. That would be very common the USA for same-sex couples. I have acted for a lot of US-based people and that is exactly what they would do. It is a very satisfactory method.

Photo of Sharon KeoganSharon Keogan (Independent)
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Is Ms Duffy familiar with the Spanish High Court case in April last, relating to a Mexican surrogate?

Ms Fiona Duffy:

No, I am not, I am afraid. I believe the judgment was in Spanish

Photo of Sharon KeoganSharon Keogan (Independent)
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The court declared that adoption was the better option for protecting the best interests of the child.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Deputy Higgins is next.

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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Thank you, Chairman.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Please confirm that you are on campus.

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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I am indeed. I thank all of our witnesses for sharing their legal expertise, research and lived experience with us today. It is so beneficial to us, as members, to hear their perspectives as we navigate through this exceptionally difficult and complex area.

Ms Duffy gave us a really helpful overview in terms of talking us through a typical male-sex surrogacy journey and while we understand that everyone's journey is different and that every country has different practices, it is really helpful to get a bird's eye view on it. When does Ms Duffy or her clients engage with the Irish State authorities?

I have a similar question for Ms O'Connell, who I thank for all of her research in this area which was very useful. I know she is very involved with LGBTI people as a group and some of the feedback we have had, particularly from the Departments of Justice and Foreign Affairs, is that sometimes they find out that people are going through surrogacy after the fact almost, when it is quite late in the day. If the Departments had that information in their pipeline, they would probably be able to better support people going through the process and also to plan better. Is there is an opportunity for Ms O'Connell to help to deliver that message to organisations and couples she is working with that might benefit from that?

It is fantastic to have Ms Bonnie here. She presented previously to the Joint Oireachtas Committee on Disability Matters and I know her from my time on South Dublin County Council. She does tremendous work. It is so important to have heard her perspective today because that is what this is all about. It is about making sure that we are including the people who are most impacted by this. She very articulately outlined that for people with disabilities who are perhaps excluded from the adoption process, this may be their only lifeline. I would love to hear more about why she feels this is such an important option for people in that community.

I ask Ms Duffy to respond on when she and her clients engage with the State authorities and then I would like to hear the thoughts of Ms O'Connell and Ms Bonnie.

Ms Fiona Duffy:

I will start by giving a little background. When I started doing this first, there was very little happening in this area and not a lot of knowledge around it, whereas now there is a huge amount of information available. If one looks at what is happening now in terms of the proposed legislation and this committee, there is more and more information available. Anecdotally, one of the very first cases I ever dealt with involved a man who made an appointment with me, arrived at my office and told me he had a five-week old baby living in Ukraine with his wife. He thought he could go to Ukraine, have the baby and just come straight back. We are going back to the dark ages with that case but that is what happened. I was sitting in my office, looking at this person and thinking "Oh my goodness". Anyway, life has changed a lot since and people are much more knowledgeable now. It would be less likely for people to find themselves abroad now, wondering how they are going to get their baby home.

When people come into me looking for advice I always tell them, as a preliminary, that they need to let the Department know of their plans. Certainly, if they have a confirmed pregnancy, I tell them they should get in touch with the Department of Foreign Affairs. The Department cannot and will not do anything at that stage but, as I say to clients, they need to be on the Department's radar so that it knows what is happening, at least. If they communicate, the Department will tell them what the requirements are and so forth. I tend to have very little communication with the Department unless issues arise. I generally leave it up to clients to communicate directly with the Department. Does that answer the Deputy's question?

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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Yes, thank you.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Do you have any further questions Deputy?

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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I would love to hear from Ms Bonnie on the disability perspective and from Ms O'Connell on the organisations she is working with and whether she thinks it might be possible for that message to get to them to link in with the State authorities as early as possible in the process.

Ms Selina Bonnie:

It is lovely to see Deputy Higgins again. It is really important, as with anything in life, to get the foundations right from the start. That is why I feel very strongly that it is important that the issue of equality and intersectionality is recognised in this process so that it inclusive and providing equality for all. It is important to recognise, right from the start, that people are more than just one thing. The foundations are important and now is the opportunity to get it right from the start.

International surrogacy is an essential part of the path to parenthood. When people are on a journey to becoming a mother or parent and they have fertility difficulties, there are many different steps they can take. If they take the first step and it does not work, they go to the next step and it gets more and more intense as they go along. Personally, I had one failed IVF attempt and even if we could have afforded, both emotionally and financially, to try again it would not have been possible for me from a medical and health point of view. We had one shot and that was it. If our final attempt had not resulted in our miracle girl, then because adoption had been excluded for us due to the prejudice of the system, surrogacy would have been our next step.

I am half Indian, so I would have loved to have gone in that direction and ended up with a part-Indian child. It would have been a perfect link to my heritage.

It is important to provide people with options because it is not just a want but an ingrained need for many people, though not all, to be a mother or parent and share all the nurturing instinct within. To be told you are disabled and that is not for you is soul-destroying for many people. That is why we have a responsibility to get things right now for the future.

Photo of Emer HigginsEmer Higgins (Dublin Mid West, Fine Gael)
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Super. I see Dr. Sperrin nodding. Does she have anything to add to that?

Dr. Áine Sperrin:

I go back to Senator Seery Kearney's issue around section 16 and the pre-conception possible parental capacity assessments. It ties in with what Ms Bonnie says about nearly being written off before being properly considered. The assessments do not look at the holistic point of view of what disabled parents can do or properly consider adjustments that can be made. Many of our oral histories in which we have spoken to disabled parents show that babies and kids who grow up with such parents adapt to them and things work for those families. It is about giving people an opportunity and being extremely careful, if there are assessments, that disability is not considered as a risk, at it currently is for existing children. We are concerned about how one could even anticipate a risk to a potential future child at pre-conception stages. How this assessment could be done and ensuring it is not ableist are important.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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My questions are mainly for Ms Bonnie and Dr. Sperrin because, though I know there is an attitude, I was shocked by the stuff about Tusla. Ms Duffy said AHR and surrogacy are here and the law must catch up and Ms O'Connell said a lack of regulation will not stop couples from travelling to other jurisdictions but will result in less guidance on safety and best practice for intending parents. That goes to the crux of everything we are trying to achieve. It is a serious privilege to be elected to the Dáil or Seanad but it comes with serious responsibility. As legislators, we have ignored for far too long the number of families who are not recognised. We need to address that, regardless of what anybody believes. I do not really have specific questions from Ms Duffy or Ms O'Connell but I wanted to acknowledge that. Will Ms Bonnie or Dr. Sperrin come in on Tusla? If there is time, I might ask a question concerning pre- and post-birth to Ms Duffy.

Dr. Áine Sperrin:

We find the following when we look our policy and from speaking to different childcare-related professionals. We come at this from the perspective of disabled parents. We understand there are child safety concerns, which is an element of our work, but we see that the system in place about parenting capacity assessments means a disabled parent is starting off on the wrong foot when he or she comes to child protection issues through national services. The assessments do not recognise your abilities and there are assumptions about whether you should have become a parent. As well as the costs related to surrogacy, disabled people have to deal with additional costs of day-to-day living and that can impact on raising a child, which is not cheap.

There are different attitudes. There are simple things about when things are held. There have been examples of people being physically unable to attend meetings because there is not a lift and the meeting takes place upstairs. Notice for meetings where parenting will be assessed might be short. There might be an awful lot of materials, particularly in legal proceedings involving legalese and dense material. It is difficult to navigate a way around those systems. There is a lack of independent advocacy. A parent advocate independent of the legal advocate would go a long way to supporting parents through childcare proceedings, whether informal or at court level.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank Dr. Sperrin. That is something we need to challenge. It does not just fall to this committee, but also to the children's and disability matters' committees. They have been doing work on it but, as Senator Seery Kearney said, we need to highlight that.

Will Ms Duffy speak to the pre-birth versus post-birth parentage situation? I think a pre-birth model is the best way forward, where bodily autonomy is with the woman until birth and then the intending parents are the parents and take over. Will Ms Duffy give her thoughts, views or experiences? Would that be a more efficient situation for people travelling abroad? There will be emergency travel with passports. One has to wait until a baby is born for a passport.

Ms Fiona Duffy:

If somebody is going abroad for surrogacy, we have no control over whether it is a pre- or post-birth order. They are stuck with whatever the regime is where they go. We could have control over domestic surrogacy but not in terms of what happens abroad. In the US, most orders are pre-birth orders but it is possible to get a post-birth order. To a large extent, because there is no regulation or strict law, you have to keep evolving and deciding on different methods of dealing with this. Recently, I have leant more towards asking clients to get a post-birth order. In Florida, for example, there is a pre- and post-birth order system. The pre-birth order involves the court looking at the agreement entered into and accepting its validity. Then it sets out directions for what is to happen as soon as the child is born. The court accepts jurisdiction for dealing with it but gives directions to doctors and institutions as to who they might take instructions from in respect of a child as soon as the child is born. The post-birth order is done before the registration and is a final confirmatory order. It is done shortly after birth. The advantage of the pre-birth order is it gives more certainty to doctors, for example. Mary Wingfield referenced this when she was before the committee.

I am dealing with the case of a child due in this jurisdiction through surrogacy. There is a debate between the intending parents and the hospital as to who will give instructions when the baby is born. There is a desperate difficulty for the intending parents because it is their child and the surrogate mother wants them to have the child, but the hospital is saying she is the mother under law and it will only take instructions from her. One possibility is having a pre-birth order system here. I know I am deviating into Irish law but there is provision in the AHR Bill for the appointment of intending parents as guardians. However, it is not clear. I would like to think it could be done before the baby is born so they would automatically be guardians when the child is born and could make those decisions.

That is probably being too optimistic. It has to happen, however. One cannot have that grey area as soon as the baby is born.

As regards the autonomy of the surrogate mother, in the agreements I have seen abroad, the surrogate mother has absolute autonomy in respect of everything to do with the pregnancy. It is once the baby is born that the authority or instructions of the intending parents should be accepted.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Is there a timeframe under the Florida system? I suspect the fear of many people in that regard is that it could drag on. Ms Duffy stated that it takes place within a short time. Maybe there is not a timeframe for it.

Ms Fiona Duffy:

I do not know what is the precise timeframe. I can check that and revert to the Deputy. In the case with which I was dealing, it was quite shortly after the baby was born. It might even have been the day after the baby was born. It was quite fast. The birth had to be registered and that could not be done without the confirmatory order.

Photo of Lynn RuaneLynn Ruane (Independent)
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Many of my questions have been asked. I refer to the clarification in respect of what we can do in the context of pre- and post-birth internationally. A witness to a previous meeting referred to the wish for the surrogate mother recognised on the long birth certificate and the openness and willingness in that regard. Ms Duffy referred to the benefits of the situation in some US states where they have the adoptive piece. What is the difference in terms of a step-parent adoption and then dispensing with one birth certificate and having another? What is the value of that in comparison with a long birth certificate?

Ms Fiona Duffy:

First, many surrogate mothers do not wish to remain on the birth certificate. My understanding is that they are happy to go on the birth certificate if it will facilitate legal proceedings in the country of the intending parents. The reality of the situation is that under American or Canadian law the birth mother is not the mother of the child even though she has given birth to the child. From the point of view of the birth mother and getting finality in that relationship, it is important that even if she does go on the birth certificate temporarily, her name could be removed when everything else has been done.

Step-parent adoption may not be a possibility for a person living here because there is a residency requirement. The reason for step-parent adoption being the preferred method for people who live in the United States is that one could have a situation where both men are named on the birth certificate and that is recognised under the law of the state in which they live, but they might travel to a neighbouring state that does not recognise same-sex parents as being parents. Step-parent adoption gives much more security to the second parent because when he goes into the neighbouring state, his adoption order will be recognised even if the birth certificate is not. That, therefore, removes any concerns in respect of his position as a parent. Does that make sense?

Photo of Lynn RuaneLynn Ruane (Independent)
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It does. I recall the witness speaking about a willingness and stating that if the surrogate mother wished to remain on a birth certificate, the long birth certificate would be the place for that. Is there a situation where that is required? It is as valuable as what happens in America in the context of a child looking for identification of his or her surrogate mother at a later stage. Ms O'Connell may wish to comment on that.

Ms Claire O'Connell:

For clarification, under the 2022 Bill, as I understand it, the process is that the surrogate will be on the birth certificate. The intending parents will subsequently get an entry on the register of parental orders which, for all intents and purposes, would be useful in the State as a birth certificate or what have you. The issue for a long time has been the exclusionary nature of a birth certificate. The birth certificate only recognises people who are parents - the mother and father or mother and second parent or what have you. I hope I am not speaking out of turn for the rest of the coalition but the idea is that although there would be no issue in respect of having the surrogate registered as the surrogate or surrogate mother or whatever it may be, the parents are the intending parents. It is not to exclude her or minimise her contribution in any way; it is just to create a bit of separation. I refer to the research carried out by Dr. Horsey.

As regards the remarks of Ms Duffy, I do not think that in all or most circumstances the surrogate wants to be registered as a mother on a birth certificate.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I move now to Senator McGreehan. I ask her to confirm that she is on the Leinster House campus. Your microphone is muted, Senator.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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My apologies. I could not unmute the microphone for some reason. It has been a worthwhile conversation. Many of my questions have been answered. I was popping in and out of the meeting, so my apologies if my question for Ms O'Connell and Ms Duffy has been answered. How can we ensure that international surrogacy is done in the best way? Obviously, we have our hands tied jurisdictionally and only have a remit in respect of this island, but how can we ensure in law here that the best, safest and fairest surrogacy procedures are carried out in third countries?

I thank Ms Bonnie for her contribution. I heard her contributions at the Joint Committee on Disability Matters. Her remarks in respect of the ableist attitude to the structures in society stuck with me. On a tangent to that, how best can we ensure through law that is not the way it is? How do we circumvent that? If there were checks on whether one could be a parent, who would pass? It is the most difficult job in the world. The so-called fittest and finest struggle at that job. How best do we counter the attitude that because a person has a disability he or she is not able to be a parent? We know it is not true.

Ms Selina Bonnie:

The most important way of doing it is to ensure there are ethical and equality criteria underpinning it. There is a responsibility on the regulatory authority that is established to ensure the process is built on ethics and equality criteria and that there is not this immediate presumption of inability just because of a person's life circumstances. It comes back to equality criteria and ethics and recognising there is an unconscious bias - with some people it is a conscious bias - against people who may not be perceived to be the norm. We need to mitigate against that. As regards judging the future welfare of the child, as the Senator stated, none of us can tell the future. When I tried to access IVF for the first time, the doctor wanted a guarantee that I would not have a disabled child. Who can give such a guarantee?

That was a very clear, conscious bias he had against the idea of a disabled woman becoming a mother. We need to speak to these biases, acknowledge they exist and then use our ethical and equality criteria and legislation to ensure people who make the decisions will be governed by an ethical framework.

Dr. Áine Sperrin:

I might add that under section 16, if somebody has been refused access to an AHR service based on this potential parental capacity assessment, there is no mechanism to challenge that. If that section is to be included, there will need to be a mechanism for appealing that and for reasons to be given as to why it has been denied, whereby it will have to be clearly shown that it has not been on the basis of disability.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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When people who are interested in surrogacy come to Ms Duffy, does she recommend specific jurisdictions, and if so, on what basis does she do that? Does she consider issues such as cost, the legalese that arises or ethical considerations regarding the circumstances in different jurisdictions? What information does she provide and on what basis does she guide intending parents in a given direction?

My next question is for Ms Bonnie and Dr. Sperrin. It strikes me that surrogacy is not seen as part of the lived experience of disabled people because it is not an option and it is just too difficult for them to engage in. Based on our guests’ discussions, would it be something more people would be interested in doing if those barriers were removed? Is it something they would be interested in engaging in if the barriers were removed such that it were made more feasible?

Ms Fiona Duffy:

As a cautious solicitor, I would not recommend anything to anybody. Generally, people come to me having made up their minds about where they think they would want to go, but I have had experiences recently where people have come to me intending to go to a jurisdiction with which I am not familiar. I know people who practise in this area worldwide, so I will generally communicate with them and see whether anybody has experience with the area or country in question. Depending on the feedback I get, I will decide whether to go forward with the client. In one recent case, I got very negative feedback on a certain country, so I passed that on to the client, who said they would go somewhere else instead.

If it is a jurisdiction I have not previously worked with, I will let the clients know that. Having satisfied myself that it probably has a regime, I will generally advise clients they will have to get an independent lawyer there who can give us an opinion on the law. Obviously, if we are presenting a case to the court, we have to be satisfied that what has happened there is per the law there. Invariably, therefore, we get an opinion of law and, if necessary, an affidavit of law.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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It seems very piecemeal for intending parents and very difficult for people to find out all the information. There are many different elements to it, from the Department to lawyers here, lawyers overseas and medical issues.

Ms Fiona Duffy:

Yes, and the cost is huge, although I do not concern myself with the cost because that is a matter for the client. It is a big issue. One of the first steps that has to be taken is that the client must seek advice on the area in question. Often, the clinics provide advice. One of the requirements of the State when somebody is seeking a declaration of parentage here is that the surrogate mother receive independent legal advice, evidence of which has to be produced in court. It is probably important that intending parents get legal advice as well because often the lawyers in clinics, if the client does not seek a separate lawyer, might have a vested interest. It is essential, therefore, that the intending parents also get that advice, although that is an additional cost and layer.

Ms Selina Bonnie:

I am sure my colleague will be able to speak to the research in a moment. Of course, if people knew they were not going to be excluded and discriminated against, they would be more inclined to consider that surrogacy might be an option on their parenting journey. As a disabled person, you get so used to so much within society being inaccessible or poorly designed that you can fall into a trap of just presuming something will not be available to you. It is important to query that and ask questions. When we talk about something so personal as fertility and parenthood, it can be difficult to find the strength, particularly if one has had bad experiences, to ask whether this is for one and whether one can be included. It will be important, when this process has finished and if there is any publicity, promotion or awareness-raising, that the imagery as well as the language be inclusive and reflect the diversity of society. If there is an advertisement or report within which somebody is depicted as perhaps a bit like one, whether a wheelchair user, someone with a guide dog or someone using sign language, one will know instinctively that one has been considered and that the service may be for one. There are more than just equality and ethical criteria; we have to think about the next step of when the information is being shared and ensure it will be inclusive and welcoming as well.

Dr. Áine Sperrin:

We had about 40 oral histories of people detailing experiences from a disabled person's perspective. Only two people referred to surrogacy and that was just to say it was not an option for them, whether because of the cost of undertaking it or the legal insecurity in regard to who will be the recognised parents, particularly in the case of same-sex couples. They can feel purely invisible. We did as much as we could to gather a wide variety of stories related to reproductive justice, but surrogacy was definitely one of the main blind spots we did not get to hear, although we think that is reflective of people not being aware of it or considering it a viable option.

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I have just come from a meeting of the Joint Committee on Disability Matters and I was speaking on the floor of the Dáil, so I apologise for having missed some of the meeting. I am not sure whether some of my questions have been asked. What happens when a family takes a journey to have a second sibling? What could be the issues with the legislation in that context?

The CFRA has provided a pathway to parenthood for same-sex couples. Has LGBT Ireland come into contact with members who have chosen not to follow this pathway? If so, what reasons have they had for making that choice? What are the key lessons in the CFRA that should be learned in the context of the proposed AHR Bill?

Ms Claire O'Connell:

On the question about siblings, that is an issue I think about a lot. In the case of the CFRA, for example, a transitional provision was allowed, whereby everybody who used a gamete donor would be identifiable but there would be about three years after the commencement of certain sections of the legislation in which anonymous gametes could be still used. Much of the reason behind that related to people who already had a child from the same gamete donor, who may have been anonymous, and they then faced the challenge of deciding whether there should be a sibling relationship between their two children or whether they should work within the framework and have to use an identifiable donor.

It is just to be conscious of things like that. It is a choice whether you want to give the discretion to the parents to prefer identity and choose that or a transitional provision where you give parents a bit of a chance to maintain those relationships.

The second question was whether I was aware of people who did not follow the CFRA. I am. In one particular instance, a couple used a known donor even though they knew, with legal advice, that they would be left out of the CFRA provisions for a retrospective declaration of parentage. The reason they did that and the reason they are excluded is that they used a known donor. All the narratives around the CFRA and the disclosure of a child's identity were becoming more prevalent in the conversation and they recognised that. They thought their child should know its genetic origins but purely for that reason they are excluded from getting a declaration of parentage. That is a considerable problem.

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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That is a problem.

Ms Claire O'Connell:

It is a real problem. My opinion on mistakes that have been made in the CFRA would include exclusions about known donors, as I just said. Not being able to avail of non-clinical donors in human assisted reproduction is a problem because it requires unnecessary medical interventions on something that can be a very private and lovely process at home. One technical issue I have is around sections 21 and 22. These are the sections that deal with retrospective declarations of parentage. They have strict criteria and going forward there are strict criteria. What there is not is a discretionary principle for the court. I see this a lot with surrogacy in the UK and the court cases that arise there. Sometimes people, through ignorance, mistake or something that may not even have been their fault, fall outside of a framework. What needs to happen in each court application is that a level of discretion is provided to the court to allow it to say have regard to, say, the best interests of the child or even the autonomy of the surrogate. Different principles can be applied in different contexts. That discretion does not exist in the CFRA. It currently does not exist in the 2022 Bill. In fact, it is more restrictive than in the general scheme of the 2017 Bill in that the latter allowed discretion to dispense with a surrogate's consent in certain circumstances. That has been removed. Allowing for that discretion is something that is recommended by the UK law commissions.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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We are coming to the end of the session but I am aware that there were some questions for Ms Bonnie and Dr. Sperrin.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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In some respects, the questions may have been answered but Ms Bonnie and Dr. Sperrin may wish to respond. The issue relates to cost and the idea of the risk to the child included in the Tusla guidelines and the parental capacity assessments, their inappropriateness and the appalling situation that arises. It was merely to highlight that and give the Ms Bonnie and Dr. Sperrin an opportunity to address it.

Ms Selina Bonnie:

On the inappropriateness of the parental capacity assessment and what is considered within these assessments, we think there are mechanisms in place for child safety concerns for existing children. In that case, why do it at a preconception stage? That is the point we are highlighting. As others have said, it is difficult to predict a risk. Disabled people are being held to a much higher standard than non-disabled people simply because they have more contact with social and health services and State bodies are more present in their lives than in the lives of non-disabled parents who can parent freely and are not subject to the same scrutiny.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Does Ms Bonnie wish to come in on that?

Ms Selina Bonnie:

No, I think my colleague covered it adequately.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I will briefly go to Senator Keogan.

Photo of Sharon KeoganSharon Keogan (Independent)
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Ms Bonnie may be able to answer this. The issues I have are ethical. One is the exploitation of women and children. What happens when parents refuse a child due to disability or where children are abandoned because of gender? This has happened in the countries which have surrogacy, whether Thailand, India, Australia, America or the UK. Maybe one twin is taken and the other is not. What is Ms Bonnie's view on that?

Ms Selina Bonnie:

I could not speak to that. As a parent and a disabled person, I do not see disability or impairment as a negative to be avoided or abandoned or thrown away so I could not possibly understand how somebody could reject a human being just because of the person's perceived ability, future inabilities or health issues. We all have our unique abilities. Given the right support and nurturing, we can soar. We can be anything. Nobody can predict the future.

Photo of Sharon KeoganSharon Keogan (Independent)
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Does Ms Bonnie think it is right that the parent gets the right to walk away from the contract?

Ms Selina Bonnie:

I do not think any parent in any area of life, regardless of whether it is surrogacy or just normal life, has a right to walk away from a child. As a mother, I cannot possibly understand such a sentiment. It is not something I have ever felt. I do not feel I can really give the Senator a useful informed answer. I am a good mother and I-----

Photo of Sharon KeoganSharon Keogan (Independent)
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No, I am not questioning Ms Bonnie's ability.

Ms Selina Bonnie:

I am sorry, but I do not think I can really give the Senator a helpful answer. Perhaps my colleague has something to add.

Ms Claire O'Connell:

The perspective of our project is that of the disabled parents. The issue of disabled children was not the focus of our research. We are not familiar with any issues like that.

Photo of Sharon KeoganSharon Keogan (Independent)
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Perhaps Ms Duffy might be able to give me her view about surrogate parents walking away from a child, as has happened in a number of jurisdictions, where the child may not have been of the right gender or may have been disabled. For instance, there was a case in Australia of a child who had Down's syndrome where the parent walked away from the child. What is Ms Duffy's view on that?

Ms Fiona Duffy:

It is complex. As I said at the beginning, surrogacy is complex. By way of clarification on the baby Gammy case in Thailand, I believe that was subsequently clarified in court in Australia. My understanding is what happened there was that the mother was expecting twins and discovered that one of the children had Down's syndrome. I believe there may have been a debate around an abortion but the mother wanted to keep the child because the child was, in her view, a lucky child. I know the family has been much maligned for having abandoned the child but my understanding is that in fact the mother chose to keep the child. That is something that should be clarified.

The whole issue around surrogacy is that in most jurisdictions the agreement between the parties is not enforceable. That is where the dilemma is. If it was enforceable, the parents would have to take the child but there is this very fine line between having a woman carry a child and then forcing her to hand over the child. I cannot really give the Senator a definitive response on it. When you look at it, however, and without even dealing with surrogacy but with other situations in which people conceived children naturally in a relationship, parents do walk away. Fathers walk away, as do mothers, for different reasons and because things happen. It is not something that is exclusive to surrogacy. It can happen anywhere in life.

Photo of Sharon KeoganSharon Keogan (Independent)
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Can Ms Duffy give specifics about where this has happened?

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Sorry, we are going to have to move on.

Photo of Sharon KeoganSharon Keogan (Independent)
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Fine. I have never heard of that happen but that is okay.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank the witnesses for those inputs. It shows the lack of regulation in this area is very problematic for all parties.

Our remit is to make recommendations on where we could regulate to avoid circumstances where anyone, whether it is a child, a surrogate or an intending parent, is disadvantaged in any way with respect to their rights. I thank everyone for their contributions and for engaging with the committee. We will suspend for a few moments to allow the next witnesses to take their seats.

Sitting suspended at 11.10 a.m. and resumed at 11.17 a.m.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I welcome everybody. In this session, our second today, we will be considering the rights and regularising the position of existing children born through international surrogacy, the role of legal advice and arrangements for the verification of documents issued in other countries. On behalf of the committee, I welcome: Ms Maeve Delargy and Ms Ranae von Meding from Equality for Children; Ms Gillian Keegan, from the National Infertility Support and Information Group; and Ms Cathy Wheatley and Ms Ciara Merrigan, from Irish Families Through Surrogacy.

All witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I cannot permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts of Leinster House will be asked to leave the meeting. I ask any member participating via Microsoft Teams to confirm prior to making his or her contribution that he or she is on the grounds of the Leinster House campus.

I remind everyone that masks should continue to be worn throughout the meeting by all present and should be removed only when speaking.

I invite Ms von Meding to make her opening statement.

Ms Ranae von Meding:

On behalf of Equality for Children, I thank the committee for the opportunity to present to it today. I am the chief executive officer of Equality for Children, a not-for-profit volunteer-led organisation that represents hundreds of LGBTQ+ families across Ireland.

Equality for Children was formed in 2019 with the intention of fighting for equal treatment for children born to LGBTQ+ families in Ireland through donor-assisted conception and surrogacy. More importantly, I am also a proud same-sex parent to two daughters with my wife Audrey. Ava is five and Arya is three.

This committee has been established to look at the issue of international surrogacy. Today’s session has been convened to look at, among other things, the retrospective recognition of international surrogacy. The committee has heard from our close friends at Irish Gay Dads about how surrogacy can be regulated in an ethical way and how the lack of regulation affects same-sex male couples who have children through international surrogacy. However, international surrogacy is not an option for Irish same-sex female couples. Currently and under the proposed legislation, parental rights through international surrogacy are only awarded through the biological male parent. This means that there is no path to parenthood for two women who may need to access surrogacy. As far as we are aware, there are no children born to same-sex female couples via international surrogacy who require retrospective recognition.

Today, we are asking the committee not only to ensure that same-sex male couples can access international surrogacy and that children already born and conceived through surrogacy to same-sex male couples are included in the legislation, but also to ensure that same-sex female couples can access international surrogacy and that all those LGBTQ+ families left out of current and proposed legislation do not continue to be left in legal limbo. We are asking that the committee make recommendations to amend the Health (Assisted Human Reproduction) Bill 2022 and the Children and Family Relationships Act 2015 to include all children born to LGBTQ+ parents through international surrogacy and donor-assisted conception.

I will now hand over to my colleague, Ms Maeve Delargy, a member of Equality for Children and a practising solicitor, who will outline the current position of countless LGBTQ+ families across Ireland.

Ms Maeve Delargy:

On behalf of Equality for Children, I thank the committee for the opportunity to present today. I am a member of Equality for Children, a solicitor and mother to two little girls with my wife. As an aside, I will thank my wife. I am here today while she is doing the work of looking after our children and our house. That important job is not as valued as it should be by society or, most of the time, by me. While I am a mother to two daughters, I am only a parent to one. As Ms von Meding noted, Equality for Children strongly endorses the submission from Irish Gay Dads on how to ensure that same-sex male parents are not excluded from legislation on domestic and international surrogacy. Additionally, we are here today to highlight to the fact that international surrogacy is and remains entirely unavailable to same-sex female couples in Ireland. This can be addressed in one of two ways in the upcoming legislation on assisted human reproduction. The first is by creating a pathway for parental rights to be assigned in an international surrogacy situation where there is double-donor conception and the second is by allowing an intended female parent who uses their own egg to create their child to establish parental rights through DNA evidence.

As today’s session focuses on protecting the rights and regularising the position of existing children born through international surrogacy, it would be remiss of us not to point out that hundreds of existing children of same-sex female couples across Ireland continue to be excluded from any legislation. The children who continue to live in legal limbo are: the children of same-sex male or female couples born outside of Ireland through surrogacy or donor-assisted human reproduction, children conceived by same-sex couples in a non-clinical setting, children conceived by same-sex couples using a known donor prior to May 2020 and the children of same-sex female couples conceived outside of Ireland after May 2020. We urge the committee to recommend in its report that these gaps are also addressed in the upcoming Health (Assisted Human Reproduction) Bill, should it consider it appropriate to do so. I thank members. We welcome their questions.

Ms Gillian Keegan:

I am here this morning to represent an organisation called the National Infertility Support and Information Group, NISIG. I am a long-time member and volunteer of the organisation, having been with for over ten years. It supports people on every step of their journey to have a family. We welcome the opportunity to come before the committee, which is undertaking a very important piece of work in the context of the legislation on assisted human reproduction.

For those who are not familiar with NISIG, the organisation was established in 1996 by three amazing ladies in Cork: Helen Browne, Martina Horgan and Geraldine Fitzpatrick. It is the only charity in Ireland focusing on infertility. Our mission is to provide practical supports to, and to advocate for, those who experience reproductive challenges and their families.

We strongly welcome the publication of the Health (Assisted Human Reproduction) Bill 2022. Many of the proposals in this Bill have long been called for. We are concerned that international surrogacy is not included in the current AHR legislation but welcome that this committee is tasked with agreeing a means by which this can be remedied. We appreciate that the issue members, as national legislators, have been asked to deal with is not straightforward but it is incredibly important.

Over the years, NISIG has been the first point of contact for thousands of people reaching out for support and connection, particularly in the early years when there was not much awareness of fertility issues and there were very few people for those people to connect with. Many of those contacting us are really just starting to contemplate the option of surrogacy. We also provide workshops on various issues related to fertility challenges including workshops on surrogacy. After our most recent workshop on surrogacy, we found that a relatively brief psychosocial intervention can significantly increase parents’ feelings of confidence and emotional resilience and provide practical tools for engaging in the profoundly important conversations with their child and their community about their child's story.

To give the committee an example of the lived experience of one of our members, I will briefly detail Sarah's experience. Sarah and her husband spent eight years trying to conceive before her boy and girl twins were born in January 2020. They had exhausted every treatment available in Ireland and in the Czech Republic, including Clomid, intrauterine insemination, IUI, and eight rounds of IVF. It took a massive toll on them not just financially, but also physically and mentally. They also sadly had a miscarriage during this time. It was a very difficult and stressful decision for Sarah and her husband to make but they eventually arrived at a point where surrogacy was their only option. They feel that, based on current legislation, as soon as their twins were born, the Irish State was only concerned with Sarah’s husband, as the father. Sarah feels that she is essentially invisible and has practically no rights to her own children. She can apply for guardianship but feels that just does not befit her role as a parent. Once her children reach 18 years of age, she will lose all her rights again. Sarah is their mother. When they need a parent in the middle of the night, when they have a cut on their knee or when they are scared, and for all of the other natural milestones that children go through during their lives, she is the first person they look for. Not a day goes by when Sarah does not think about how unfair this is, first of all, to the children but also to herself and her husband. Her children are not protected because, according to current Irish law, they do not have a mother. How can we accept that in Ireland in 2022? Given the long and arduous journey these parents have had to endure to finally become a mammy and daddy, including not just the emotional investment, but also the financial struggle, it is unconscionable that the State would then, as a willing bystander, make them endure any more hardship and stress.

We urge this committee to listen to the lived experience of those who have been through the international surrogacy process, whose stories clearly show the need for legislation in this area to support them and their families, and to take on board the medical and academic testimony that witnesses have provided to it. This testimony cannot leave anyone with any doubt that legislation is desperately needed and overdue for those who have been through this process and those who will undertake it in the future. At the centre of this, the best interests of the child must at all times be at the forefront of any legal provisions. We ask that the committee bear this in mind when working through this process and drafting recommendations. I thank the committee for the opportunity to speak. I look forward to answering any questions members may have on behalf of NISIG.

Ms Ciara Merrigan:

I thank the Chairperson and the committee for inviting us back here today. I am the chairperson of Irish Families Through Surrogacy, a nurse by profession and a mammy to three-year-old Clara and Matthew, who were born through international surrogacy. I am here to speak to the committee on behalf of hundreds of families created through surrogacy across Ireland. I will start today by reading a message I received from Siobhan, one of our members. Siobhan is a radiographer from Donegal. With a diagnosis of severe adenomyosis, Asherman's syndrome and years of infertility, Siobhan and her husband, Paul, turned to surrogacy as their last hope to create a family.

Siobhan is now mammy to a four-and-a-half year-old girl - the half is very important - and to a baby boy born through surrogacy last November in the USA. She states:

Ciara, our houses should be empty, devoid of noise and mess and chaos and pieces of artwork strewn across the floor like our house is today. I shouldn’t be a parent and yet here I am with two of the most precious children. We are blessed and not a day goes by that I don't pinch myself that I am here in this situation. It is just amazing what surrogacy is, and what it has done for me, my husband and my whole family. It has been absolutely life changing and life saving for me, if I am to be perfectly honest. I am sure you and others understand this. I have been to some very, very dark places on my path but thanks to two amazing ladies, surrogates Triona and Lakyn, we have been able to succeed and thrive as a family. My husband and I completed every piece of research before taking that leap down this path. It is so important to us to be able to tell our children that we have been their mammy and their daddy every step of the way, including seeing off our embryos as they were being shipped from the Merrion Clinic to the USA.

The wish to raise a family is not an expectation. It is a shared hope for healthy, happy and rewarding lives. We wish for equal pregnancy partners, surrogates and donors who can share our hope and the experience of creating a new life: a baby, a child who needs the secure, loving and nurturing environment of a family to flourish. We believe our laws and regulations should be designed as an invisible protector and enabler of children’s well-being and their right to family and citizenship.

It is absolutely alarming that the proposed legislation does not include retrospective recognition as a means to create a legal parent-child relationship with their mother for those existing children born prior to the commencement of the Bill. Hundreds of children from every county across Ireland remain vulnerable in this regard. Many of these children will soon turn 18 years of age, or already have, and will lose the opportunity for a lifelong legal relationship with their mothers: the mothers who are their caregivers, who love them, raise them and want to fully protect them. This situation is clearly contrary to the best interests and welfare of Irish children and leaves them in a legal limbo. The importance for our children of creating that legal-parent child relationship on their social, emotional and psychological well-being is completely immeasurable. Irish Families Through Surrogacy is recommending an expedited route to parenthood for the protection of these children.

Irish Families Through Surrogacy's first piece of advice to any couple going down the road of surrogacy is to seek legal advice from a solicitor who has experience in this field. The solicitor in that first consultation will explain to the couple what is involved from start to finish. This can often be a very difficult meeting for the intended parents as it may be the first time they hear that the intended mother will not be recognised in Ireland, even if it is the intended mother’s own eggs that are used.

Our members are currently experiencing huge variation in the legal process, time taken and cost here in Ireland. As the committee has heard previously, some of our members have had a five-year wait to get the father's parentage through, leaving their children without a legal parent in this State for five years. This variation is dependent on the legal representation employed by the couple and also on their address for access to courts. Essentially, one could say it is a postcode lottery. There is also a variation in the process and in the courts used. Some solicitors and barristers are using the family courts and the Circuit Court and others are using the High Court. We are aware that the Courts Service is changing. We welcome this change. We would expect that this change would ensure a more streamlined specialist approach.

Intended parents availing of international surrogacy will also employ a legal practitioner in the country they choose. The legal practitioner engaged is independent to the surrogate mother’s legal practitioner. It is the role of this legal practitioner to ensure all contracts and affidavits are credible, and that the law, regulations, and best practices of the jurisdiction are fully respected. The international legal practitioner will prepare all documents and ensure they are translated, apostilled and retranslated, including birth certificates and documents required to exit the country and return to Ireland. The legal practitioner would also work closely with the Irish embassy staff.

The surrogate mothers is assigned an independent legal practitioner. Their role is to ensure that the surrogate mother is fully informed, gives informed consent to the process and fully understands the consequences of the law in their own country and the intended parents' country of origin. Irish Families Through Surrogacy recommends that all surrogacy contracts should be individualised, directly between parents and the surrogate, to ensure the relationship between the two parties starts early and is not intermediated. Having a direct contract with a surrogate who has independent legal advice would mitigate the chances of exploitation and ensure the best possible scenario for ensuring surrogate welfare. The legal support employed for the intended parents and the surrogate must be members of and governed by a regulatory authority in their own country.

It is our experience that there are robust processes and arrangements in place internationally for the verification of documents issued in the country of birth to ensure all parties are protected. This would include oversight from the legal practitioners, the court system in some jurisdictions, Irish embassy processes, and international passport control on exit.

With the introduction of legislation, Irish Families Through Surrogacy would see a role to provide advice and guidance on the entire process, and we would work in partnership with the assisted human reproduction regulatory authority and the Department of Foreign Affairs to support intended parents, and children born through the process, safely.

Ms Cathy Wheatley:

I thank the committee for the opportunity to speak here today. I am the spokesperson for Irish Families Through Surrogacy. I am also a mother to three children. My first-born, baby Helen, died at birth. When I lost Helen, I also lost my ability to carry another pregnancy. Thankfully, through advances in assisted human reproduction, I was able to avail of surrogacy and welcome my now two-and-a-half-year old twins Ted and Elsie into the world. Thankfully, they were alive. The first thing I said when they were born was "How is Ivana?", our surrogate, and then "They are alive", because that was not my reality. Today, the committee will hear some of my story, but, ultimately, I am here to represent the women up and down the country in every community and constituency. Irish Families Through Surrogacy represent families who, through no fault of their own, had to avail of international surrogacy to have their children.

I was failed by State services throughout my entire adult life. I was failed by a delayed diagnosis of endometriosis. I was failed by the maternity services where there were admitted failures in my care and the care of my beautiful, stillborn baby girl, Helen. I was failed when, due to medical reasons, I was denied the chance to adopt. I was failed when I brought my beautiful children home to Ireland. When we landed in Dublin Airport as a family. I realised that this was the moment I lost my maternal rights. I have been invisible as an Irish woman throughout all of these failures. At the committee's previous sessions, we heard about invisible mothers. The truth is that I am an invisible mother. As a mother of a stillborn baby I had no child in my arms to signify my motherhood in society's eyes. When my husband and I finally welcomed our twins Ted and Elsie through surrogacy, in the eyes of the law I am a legal stranger to them. I do not exist. If the current Health (Assisted Human Reproduction) Bill proceeds without the inclusion of international surrogacy and retrospective recognition of parentage, being a mother through surrogacy means that I will still be invisible. Hundreds of mothers and I will not be recognised. Today, I come here to appeal to members, on behalf of these mammies, to please let us finally be visible.

I say to the mighty women who carried our children, simply because our bodies could not, that Irish Families Through Surrogacy wants you to know that we see you and that you are not invisible in our lives or in our children's lives. When we blow out the candles on our children's birthday cake we think of you and we celebrate you. Without you there would be no birthday cake and our houses would be empty. The beautiful pandemonium of family life simply would not exist. This is why your well-being and protection will always be a priority for us.

We come here today to be witnesses to our legislators, the people who can make a difference to our families and to our children. However, the truth is we bear witness every day to our children. We have a responsibility to be able to look them in the eye and be confident that their story is one that ensures they were created with protection, love, respect and dignity for everybody involved with our pregnancy partnerships. We ensure that we as their parents did everything we could to make their story one of which they could be proud of.

Our children have a right to know their origins and their identity. When we see our reflection in our children’s eyes, we want them to see a mother who did everything possible to protect them, love them and advocate for them. Now is the time as a country we can stand up and be counted, be brave, be forward-thinking and be the ones who are not afraid to tackle the difficult advances in society. This is not just for our families' sake but for all families and for generations to come. Please do not fail us now.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank Ms Wheatley. I know how difficult it is to come in and go through these stories so I really appreciate everybody coming in to do it today.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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How do we follow that? I follow it by saying this day seven years ago my daughter was born and when her surrogate mother recovered I placed her in her arms, knelt at her feet and thanked her for the incredible miracle that is my child. We light our candles later today. She has asked for anonymity in these circumstances but she is not anonymous in our house. She is very vital and important in our house.

There are a few issues that have come up. I would like Ms Merrigan to share what I know is part of her story because it came up in the context of last week's discussion about clinics abroad and protocols here. She has a very valuable contribution to make on that. It is not that I am ignoring others - I am trying to be mindful of time - but perhaps Ms Delargy could speak to step-parent adoption and the question that people might ask of just going down the adoption route. If it were that straightforward, we would all have done it. Perhaps we could explore what that is and the impediments. NISIG has done an amazing job over many years and I thank its members for the advocacy and factual and truthful workshops.

Ms Ciara Merrigan:

I thank the Senator for her questions. We were married in 2011 and, unfortunately, we had a number of miscarriages. Our story on our surrogacy journey started in a Dublin acute hospital, when I was diagnosed with endometrial cancer and my gynaecologist recommended that I have a total hysterectomy. I was only 33 at the time, which was pretty young for that type of surgery. At that time, as part of the cancer treatment, my consultant spoke to me about surrogacy. She spoke about the experiences of other previous patients of hers, indicating it was a real option for me and my husband to create a family.

At that point she referred me to the Rotunda IVF clinic, which was known in those days as the HARI clinic. She referred me to the clinic so we could have our embryos created and frozen. We completed two cycles at the Rotunda IVF clinic. It is important to note that one of those cycles was funded by the State as part of my cancer treatment. That is the normal process for young people with gynaecological cancers, including cervical, endometrial, ovarian and those types of cancer.

We created the embryos and, ethically, I did not think we could just leave them there. They were all a possibility of life. When I got over surgery etc., we started researching the possibility of surrogacy. We looked at both domestic and international options but there was no legislation about this in the country. That did not sit right with me and we looked internationally then. We looked for a country that had a robust framework in place.

Ukraine was the country we chose to pursue our surrogacy journey. We started to research different options and clinics in Ukraine. It is interesting because one of the clinics in Ukraine was owned by the same company that owns the IVF clinic we were dealing with here. Essentially, they are all owned by the same company and therefore they all had the same standards, procedures and book of policies. Even on a more practical note, they had the same way of thawing an embryo in the clinic in Ukraine as they did here in the Rotunda IVF clinic lab. The book of standards was exactly the same.

At that point we looked at transferring or transporting our embryos from Ireland to Ukraine and it takes a while to get one's head around the thought that part of you and your husband is in a plane flying to Ukraine. We met the people in our clinic. It was explained to us at that point that we had to complete an external clinic assessment. It is a six-page document and I have a copy of it with me today. I pulled it out to have a look over it. The case is assessed for legitimacy to ensure standards and licensing are in place, including a registration with the regulatory body in Ukraine. There were even questions about success rates. After that, the quality managers in the labs both in Dublin and Ukraine communicated and an inter-clinic agreement was set up. That was a 23-page document between the two clinics.

The clinic in Dublin then had to apply to the Health Products Regulatory Authority, HPRA, for permission or a licence to export our embryos from Ireland to Ukraine. There is much paperwork in that process and it took approximately three months. It is quite a long process. The clinic in Ukraine had to do something similar and apply to its regulatory authority, asking for a notification of import. Essentially, there were two regulatory bodies involved to ensure the standards, processes and everything else were in place on both sides.

The clinic here was happy with the clinic we had chosen in Ukraine. Again, it was owned by the same company and had the same standards, procedures etc. The next step was to employ a courier or transporter that is licensed, with procedures, protocols and standards in place to carry these precious embryos from one country to the other. Again, the clinic in Dublin had to ensure it was happy with the person we chose to do this. The clinic in Ukraine also had to agree it was happy to take the embryos from the transporter and it was happy with the standards and procedures etc. that were in place. At that stage, we decided - pardon the pun - not to put all our eggs in one basket so we completed the process twice. The documents had to be completed on both occasions because they were separate transfers.

There are some lessons to be learned already within the system that we can bring to the table. There are regulatory bodies already working together, so to speak.

Even for a couple here in Ireland, it was reassuring for us that the clinic in Ireland completed all these processes. They had nearly confirmed that everything was right about the clinic in Ukraine as well. There are learnings there from industry that we can acknowledge here at the committee. Does that answer the Senator's question or does she need any more information?

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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There are protocols in place that we can build on for other aspects-----

Ms Cathy Wheatley:

Yes, from the Health Products Regulatory Authority, HPRA, point of view.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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-----particularly the Chair's question of last week which I promised her Ms Wheatley would be able to answer.

Ms Cathy Wheatley:

Does that answer it?

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank Ms Wheatley.

Ms Maeve Delargy:

I thank the Senator for her question on step-parent adoption and the appropriateness of that process for surrogacy. Before we get into whether it is possible or not, I would start by saying that it is not really appropriate in these cases. These intending parents are already parents of their child and it would be essentially asking them to adopt their own child. Particularly where there is a genetic link, it does not make sense to go through the adoption process.

Let us look at what is actually involved in getting an adoption order. It is an invasive process, it is time consuming and it results in a declaration of eligibility and suitability, but such a declaration would not be given in cases where there is an underlying medical condition for one of the parents. It is often the reason, as we have heard from the stories today, parents have to go down the route of surrogacy, in that there is an underlying condition and that declaration would not be given.

I would also point out that a step-parent adoption is not an option for people who have used assisted reproduction because the adoption authority is not making those orders at present in the absence of legislation. I would also emphasise the fact that in the proposed legislation there is a surrogacy register and all the details of the surrogate will be on it, available to the parents and available to the child, and that hugely important role, as pointed out today, will be recognised, formalised and recorded so that information is available to all parties.

It was stated by another witness that adoption has been used, particularly in cases in the US where the couple is potentially moving between states. Adoption can be a stronger formulisation of the parental rights in that situation where same-sex marriage is allowed in one state and not in another, and that might be the reason one would use it there, but in terms of Europe there is recent case law from the European Court of Justice in relation to mutual recognition of parenthood in same-sex families between the EU countries. Therefore, it just would not be appropriate or required here.

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank all the speakers today. When Ms Delargy spoke about her wife with her two beautiful daughters at home, as Ms von Meding did, I was thinking that I had two of my grandchildren for the weekend and I was exhausted. I actually said to myself that I was glad to be back to work on Tuesday. Let me tell the committee members, as they will know, it is a full-time job, in itself, and they are only three-and-a-half and ten months old. I can tell members I had my hands full for the weekend. I also thank Ms Wheatley and Ms Merrigan for their stories. I know Ms Keegan also, who has been marvellous over the years, and I compliment her too.

I watched "The Late Late Show" a few weeks ago when Ms Wheatley was on it with her surrogate. Actually, my heart stopped. I thought it was beautiful to hear the two of them speaking on "The Late Late Show" about their journey and how Ms Wheatley went to meet her in Ukraine despite the war. Ms Wheatley touched a lot of people but, because I know her and I know Ms Merrigan, I just thought, "Oh my God". It was just so emotional. I just want to say, "Well done".

From listening to everyone, it just goes to show that this legislation is so important. It is a framework. It is a document that will make everything legal and that is what we want. We want them to be recognised and that is what we need to do. We need to move on it as quickly as we can. It is so important when one hears the stories, and particularly when it comes to medical issues and things like that.

I have been talking to a lot of women recently who have taken the in vitrofertilisation, IVF, route. That is another area where they have to go. Nobody wants to be in a position where they need to.

We need to do this. When you see children - I saw it at the weekend - and the love that they give you, your whole life is changed and it is lovely. Your whole world is upside down and your house is upside.

There are two questions I want to ask. They are questions I was thinking of the other day. Do the witnesses believe transferring parental rights to the intended parents should happen before the birth of the child or after? It is just something I was wondering about. Would something like the birth certificates that marked the surrogate mother for tracing purposes later in life be something that we may need to look at?

We cannot impose laws for other countries. We need to lead here. What core standards should be in place to ensure that we protect the rights of all the parties involved? Is there something specific there? Ms Merrigan, in particular, went through many legislative issues. That definitely needs to be looked at. In general, is there anything there that might make a difference to this?

Again, I thank the witnesses. I am so touched and I am very supportive. I am fully committed to doing anything I can do to help. I do not know who wants to take the questions. Perhaps Ms Merrigan will.

Ms Ciara Merrigan:

I am happy to take the first part about the transfer of rights before or after birth. Irish Families Through Surrogacy would be recommending that there is a pre-birth approval with an on-birth or post-birth transfer of rights. That is to ensure that the surrogate maintains the autonomy of her own body at all times during the pregnancy. That would be our recommendation.

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank Ms Merrigan. I thank our guests.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Has Deputy Murnane O'Connor another question?

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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No. I was touched by the stories as well. I thank the witnesses.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Would Ms Wheatley like to come back in? There is time.

Ms Cathy Wheatley:

In terms of what we recommend in Irish Families Through Surrogacy or what we would like to see, it is, of course, the ethical process of surrogacy. Like Ms Merrigan, our experience when we started our surrogacy journey was that it was very much a collaboration with the clinics in Ireland. I went through my stimulation in Ireland and that was worked with the clinic over there. It was a collaborative approach and that is definitely what we want going forward. That is why we feel the role of the regulatory authority is so important. It is because we have these systems in place. We need something to cement it and give it an overview.

The legal representation for both parties involved is hugely important to us as an organisation. The reason for that, of course, is that we have our representation in Ireland. We also have legal representation in the country where we are availing of surrogacy but the surrogate mother herself has that independent legal representation. That is absolutely huge for us. In my case, when we went there, we met our surrogate, Ivana, who has no problem being named. We met her without anybody involved first. We had literally a human meeting where we wanted to see who she was and whether she was happy to do this, and her reasons for doing it, and then we went into the more official process whereby we met with our representation, her representation and together we produced a collaborative contract, so that her voice was heard at all times. That is really what we are calling for in that regard.

As we said, counselling is a big deal. Even before starting the process, we believe people should have access to that. Every woman wants to carry her own child and as one is going through the process, there is so much information and so many regulatory bodies, and one must meet the requirements of clinics here, clinics over there, etc. The reality is it is a big deal to hand over the most precious gift even from our point of view in terms of our embryos to begin with. To hand that over to somebody else to take care of is huge and, therefore, the intended parents definitely need to have counselling to establish how they will feel and how they will deal with issues when they arise.

One of the most beautiful things that happened between me and my surrogate mother is that when we went there at the 20-week scan, she asked me if she could hold her tummy to my tummy so that I could feel her babies' kick. In that moment, I was blown away by her love, generosity and kindness to be able to do that. I also wanted to make sure that she was okay with that, emotionally. She was offered counselling at all stages throughout pregnancy as well and, most importantly, post birth. There was a definite push from the clinic to get her to avail of counselling. Ivana would tell you she is a strong woman. She knew what she was doing. She knew what she was getting into, but she did avail of counselling, and she found that it really helped her. One of the things that she said - I do not speak on her behalf as she is able to speak very clearly for herself - is that after our surrogacy journey was completed, the twins were born and we were back in Ireland, what she missed most was the contact between the two of us because in those nine months we were constantly in contact. I was so busy. I had newborn twins and I would ring her and show them to her and she would say it was okay that I was busy and it was grand. One of the reasons she availed of counselling was to deal with the fact that the time I had initially was not available, not because I did not want that, but because I was caring for newborn babies. That was a huge issue for her.

The main issue for us is always that our surrogate mothers get to retain autonomy over their own bodies. That is important. Nobody has the right to say what anybody does. It was one of the things that was really important to us. Ivana herself would say differently. She would say "Get it done and dusted quickly". She would be afraid of her life that she was going to have legal responsibility for the children. That is something that is really important. As an organisation, we outline the steps to couples in the absence of regulation and legislation. That is a role we have very much taken on and what we recommend to couples is to make sure that people going into it have clear indications of what is best practice.

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank Ms Wheatley very much.

Photo of Sharon KeoganSharon Keogan (Independent)
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I have been very touched by the testimonies here today. There is no doubt that the road to parenthood has not been easy for any of the witnesses. The stories that I have heard today are heartbreaking - having a stillborn baby, losing the baby, being unable to give birth and then being denied the chance to adopt, which is really awful, considering that there are 140 million children in this world that are orphans. There are 100,000 orphans in Ukraine. It is difficult to be told one cannot adopt for medical reasons, as was the case with Ms Wheatley. Was adoption an option for anybody else?

I heard what Ms Wheatley said about the surrogate mother, the counselling after the birth and the fact that she is touch with her and wants contact. That emotional bond will be there for ever. You are the mother of her children. How will that affect Ms Wheatley and her family going forward? How will it affect the children? How will it affect the surrogate mother in the long term?

When Ms Wheatley looked at Ukraine, did she look at some of the issues in terms of what the Ombudsman for Children said about surrogacy there? Why Ukraine in particular?

Ms Cathy Wheatley:

Yes, I understand the long-term effects, but I want to put on record that the children are not her children; hey are very much our children.

I appreciate Senator Keogan's comments and understanding of the reasons why we had to avail of surrogacy. In terms of our research and everything that we did, the reason Ukraine was hugely important is due to a couple of factors. First, in order to avail of surrogacy in Ukraine you have to be a heterosexual, married couple and you must have a medical reason for undergoing surrogacy. We met the criteria in that regard. The lengths to which they go to ensure there is a medical reason are robust. I had to get letters from my fertility doctor and send my child's stillborn certificate to them. Lots of paperwork was involved before we even got to the point of being accepted to undergo surrogacy in Ukraine.

Of course we researched the situation. The first thing we did, which we would advise anyone to do, is to get legal advice. We were very lucky in that the legal representation that we got had experience and was able to steer us in the right direction. At the end of the day, we have to be able to make sure that the women carrying our children are being looked after, not just for ourselves but for our children. We bear witness to them. As Ted and Elsie grow up, I have to be able to look them in the eye and tell them that I made sure at every step of the way that the woman who carried them was protected. A couple of ways we did that personally was when we went to Ukraine first, we met her without any agency being involved and we had a chat. We talked about her motives for doing it, why she wanted to do it and whether we thought it would work for all of us together. Then we had a meeting with the agency, as I said. One of the things that was really important to us was that we spent time alone with her at every step of the process, so that she was not being monitored in any way and she had free rein to highlight any problems she was having. We also flew over there when she moved to the city where she was going to give birth. We flew over to check out her accommodation to make sure that it was of a proper standard for her and her children who went with her.

We did due diligence to the best we could to make sure that she was absolutely protected. After our twins were born, they were in the neonatal unit for ten days. Ivana was in hospital for three days. When she left the hospital, she came to stay with us. Because her family lived further away, I felt that I had a responsibility to make sure that she was okay as well. Every day we would go and visit the twins and I asked her if she wanted to come but she would say "No, no, I am done. I will rest and watch TV." Of course she did come, which I felt was really important as well, when we went for the DNA test, so that the Irish officials could be there to make sure that she was okay and that she was there of her own free will. We all travelled together. We did not travel separately. This was very much a relationship that had been built on. She stayed with us after that until she simply had enough of us and she wanted to go home to her own family. That was the point when she left and went home to her boys. She was taken into hospital early and her mother had not yet arrived to look after her children so while she was in hospital having my children, I cared for her children. The relationship that was there was very solid. I trusted her with mine and so she trusted me with hers. We went through everything that we possibly could in that regard.

Ted and Elsie are two and a half now and we speak to Ivana and her children regularly. We send little drawings back and forward. I can say 100% that she does not consider herself the mother of the children, because I am.

Ivana is living with us due to the crisis in Ukraine. I felt like I needed to do something to protect her, just like she had protected my children. She is living with us in a two-bedroom cottage in County Wicklow. We have three adults and five children in our little cottage. It does not matter if we have no room in the house, however, because there is plenty of room in our hearts. We are able to prove to Ivana that when I stood in her kitchen and told her she was part of our family-----

Photo of Sharon KeoganSharon Keogan (Independent)
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You meant it.

Ms Cathy Wheatley:

-----I meant it.

Photo of Sharon KeoganSharon Keogan (Independent)
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My heart goes out to you. You are an incredibly brave woman to embrace that mother in the way you have and to bring her and her children into your lives but also into your children’s lives as well. That is an incredibly brave thing to do.

I am sorry that I have to leave the meeting. One of the things that Ms Wheatley said is that she does not exist. Anyone who gives love to a child exists. Let me say that here and now. I know this because I fostered four children long term and perhaps 150 in total came through my door. Anyone who gives care and love to a child exists. They see Ms Wheatley as the parent. My only concern is that mother who gave birth to her child would always have that title as birth mother. I hope she would not take that in the wrong. I always see that mother as the birth mother. Ms Wheatley may be the parent or the mother. She will be able to give that child motherly love for the rest of their days. As a foster mother, I do not see myself as the mother. However, I will love those children who have been in my care eternally. My only concerns are that the birth mother would always have that title as such and the children would know their true identity going forward in life. That is my only concern.

Ms Cathy Wheatley:

Can I just come back to the Senator on that? I agree with her that the children deserve to know that they were carried by another woman. The reality of it is, at our kitchen table, even though I am not invisible to my children, in the eyes of the law I am invisible. When we have our tea and breakfast in the morning, Ivana is legally their mother in Ireland.

Photo of Sharon KeoganSharon Keogan (Independent)
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I know.

Ms Cathy Wheatley:

It is so difficult. However, we break it down to the very basics for Ted and Elsie and we encourage everybody to do this. Ted and Elsie, at age two and a half, are able to tell people that mammy's tummy was broken and Ivana is their tummy mummy. That is how they see it. Even now, when people come into the house and say, “Where is Ivana? Who is Ivana?” Ted and Elsie will say, “She is my tummy mummy.” It is lovely to celebrate the fact that is the case. That will be a lifelong relationship. I understand what the Senator is talking about.

Photo of Sharon KeoganSharon Keogan (Independent)
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I suppose nobody wants ghost children in this State. Nobody wants ghost mothers or parents. We want to give people their full, true identity. I do not want to say legal ownership, because I do not want to commodify children. I do not want to say that. I just do not like that at all, in truth. We just do not want to have ghost children in our State. We need to learn from the mistakes we made years ago in this country. Whatever legal framework to protect the children that are here today and going forward, we need to put in place. I understand the need to do that.

I am sorry that I have to leave now, but I appreciate all of the witnesses’ statements. I hope they know where I am coming from as a concerned member of this committee.

Ms Ciara Merrigan:

I just wish to acknowledge as well that we absolutely want our children to know their full identities, such as information on their surrogate mothers and where they were born. They know their full stories. When I was here previously, we discussed, but I just want to reiterate, that the child's identity is a very important thing to Irish Families Through Surrogacy as well.

Photo of Sharon KeoganSharon Keogan (Independent)
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That is great. I appreciate that.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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It has been a very emotional kind of session. I also just want to acknowledge Senator Seery-Kearney. She has been invaluable to me in the context of information. I appreciate her sharing her story, as well as everyone else who is here.

So much has been covered and said. I have just a few points. First, I welcome the fact that Equality for Children has solutions in its documents and submissions. We all have a tendency to say it is complex, and it is. However, I have found over the past number of weeks that there are actually loads of solutions out there. It is just a matter of putting them all together in the best way we possibly can. I just wanted to acknowledge that.

Ms Wheatley and Ms Merrigan have kind of already touched an awful lot their personal stories. However, if there is anything else that they want to add, I wish to give them that opportunity. I am conscious that, as they said, this is probably was not something they ever envisaged happening in their lives. Even around the whole process and where they first started, some of which has already been covered, I just want to give the opportunity to add anything.

I want to ask Ms Keegan about secondary infertility. Infertility is a very lonely space. People do not have an understanding of it much of the time and people are very harsh as well in the questions that they ask. Assuming someone gets into a relationship or gets married, people ask, “When are the kids arriving?” Then, if you have a boy, people will ask when you are having a girl. If you have one, people will ask when you are having two. While people kind of mean well, sometimes those comments can be very hurtful. On secondary infertility, sometimes there is a myth that if someone has one child, people will kind of wonder what are they complaining about. Is there anything Ms Keegan wants to say on that? I acknowledge the work she does and the support that she gives to people because, as I said, it is a very lonely space.

The final question is for everyone, if there is time for it. I refer to other models, for example, the Canadian one. We will have witnesses in from that jurisdiction and I look forward to that. The Canadian model acknowledges the bodily autonomy, which I appreciate. It has counselling and everything built in and there is no delay or question mark over when the rights of parentage are transferred over. It is done at birth. That is a good system. I am interested to hear what the witnesses think about that. Are there other models we should be looking at?

Ms Cathy Wheatley:

I suppose our stories are very well covered at this point. One thing that has not been covered, however, is the fact that when we started to undergo surrogacy, it was very taboo. Nobody was talking about it. It was hidden. I remember going to a NISIG meeting and meeting people who were going through it. My husband thought, “Wow. These are all normal people. We can do this.” It was amazing. One of the things that we are trying to do in Irish Families Through Surrogacy as well is to break down those myths around surrogacy and tell people the truth, our truth and the reality of it. Lately, we have been trying so hard to raise the social awareness of surrogacy. Thanks to the likes of the committee and its members because it has been invaluable to us to shine a spotlight on it, destigmatise it and take away the myths. As a mother of children born to surrogacy, I do not want my children to be stigmatised because of the way that they were born. Children are children, no matter how they were conceived. My job, as their mother - all of our jobs - is to fight for them to make sure that in no way are they being made to feel different.

This week, I faced the reality of not being able to sign another legal document. I faced it previously when Elsie was sick and I was sitting in the car park at the hospital crying my eyes out. This week, they started playschool. It was a very exciting day in our household. Obviously, when children start playschool, the schools need forms. I brought the forms home and my husband filled them in the night before. When I was walking my children up to the door to playschool, I did not have the same nervous excitement for them or the same emotional feelings of them being let out into the real world. In my stomach, I had the anxiety and upset of knowing that I had forgotten those forms that my husband had filled in. I did not know if my children would be turned away that day because of that.

When I got to the door of the playschool, in front of all the people there, I had to tell them I did not have the forms and had forgotten them. They said that was no problem and to just fill them in now. In front of all my peers, and my children's peers, I had to say I could do that. It made me think, as they are taking their first steps into the world, about how many other times this will be the case. How can one tell a child who is excited to go on a school trip that mammy cannot sign the permission slip? How can we stand there and know that because of the choices we made and the legislation that is not in place they will be discriminated against, if it is not changed? I cannot let that happen. I do not think any of us can. Ted and Elsie are my world. I would do absolutely anything for them, as everyone would for their children. The realisation at that moment at the playschool door was then compounded by the fact that the teacher said to Elsie, "Your mother is going to go and get the forms" and Elsie said, "She is not my mother". I felt like I had been kicked in the stomach. In those moments, everything went through my head, including whether she was aware that, in law, I am not her mother, and whether she was aware of the conversations we will subsequently be having. It felt like a lifetime but after two seconds she looked at the teacher and said, "She's my mammy." That is what it boils down to for me.

Irish Families Through Surrogacy is trying to raise awareness around this. We have been involved in lots of advocacy. We have done research studies with universities. We have collaborated with international organisations to ensure best practice is in place, even in respect of how we talk to our children. We have been a liaison between our members, the Department of Foreign Affairs and Senator Seery Kearney in order to make sure the information is quick, clear and concise to people. That is all we can do. We then come here to plead with members to make sure I do not have to face days like that any more. On the issue of recognition, and Ted and Elsie understanding, I will pass over to Ms Keegan because NISIG has recently run workshops that have been very beneficial to us.

Ms Gillian Keegan:

I thank the Deputy for her question. I know she specifically mentioned secondary infertility. NISIG provides support services to anybody who approaches us. We have a helpline, run by Ms Helen Browne, who started the organisation in 1996. I say a huge "thank you" to her because without her and the other two ladies there would not be any organisation. There was no awareness in those days. She said there was nowhere to go to and it was very difficult to talk about anything. The options available in those days for assisted human reproduction, AHR, were very limited. There were some options in helping someone to have a baby but many people were not able to get there. Ms Browne said the world is our oyster now in that at least there are options or different procedures we can do.

We hold support meetings. It is quite interesting because we had our first support meeting post-Covid last Saturday. We held it in the Ashling Hotel in Dublin. I did not know if anybody would turn up, as it was the bank holiday weekend. I did not think it through properly when I was actually booking the room but seven beautiful people turned up. Some of the conversations we have in support meetings are with people who are just starting to realise they may need a certain amount of help, including people who have been on a journey for quite a while and those who may have had one child without too much help, or everything went fine and then they suddenly realise. I remember the husband of one couple who was at the meeting said to me they had their first child, who was six or seven, were trying for another child and this whole issue has dominated their house. This couple tried to have their second child and did a number of things that did not work. They then talked to a clinic in another country. He said he felt that even though this couple have a child it kind of dominates the landscape. Everything is about what they will do next and what their plans and options are.

We have people at our meetings who might have tried for a number of years to have a child, and may have a number of complex issues, but they also may be talking to us as an organisation about maybe not being able to have a child. That conversation is very hard for anybody to have. They might say to me they might have to face the fact they may not be able to have a child. They may try for seven years but then there are conversations around how they know when to stop. I have had all these conversations at many different meetings. When I was at the meeting last Saturday, since we had not actually been physically in a room with people for a long time, one particular lady spoke who was very upset. It only happened at the start of the meeting but it resonated with everybody. Even though I had my son with help ten years ago, I could feel that it brings people back to that place again. It can be very challenging for a couple. At least with NISIG, people can come to a meeting and talk to others about couples constantly having that tension around what they will do next, how they will manage this and so on.

We are basically here for everybody and do the best we can to support people. We are aligned with fantastic organisations that can help us. We help each other. I text Ms Merrigan or whatever when I need a little help. Ms Wheatley mentioned the workshops we have been doing. Specifically, we did them with couples through surrogacy. They are counsellor-led, donor disclosure workshops. They are about counsellors guiding people on the nuts and bolts of how to start the conversation with their younger children about their origins. That is something we have started doing with a number of groups and we plan to do it in the future.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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There might not be time to discuss the Canadian model. If there is time at the end, we can come back to that.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Okay. We will-----

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I have not asked two other witnesses questions.

Photo of Lynn RuaneLynn Ruane (Independent)
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I have been doing a lot of listening and am trying to process so many things. I am considering whether we move to a situation where we nearly have to prove every single ethical framework conversation, such as love and compassion for surrogate mothers, and try to balance that with the fact we just need to exercise children's rights. At what stage do we balance those two things against each other? People who have this lived experience are held responsible, in a sense, to keep portraying how much they care about the process, or care about the women who have carried the child for them and so on. At what stage do we say that is one part of it, but we need to do something?

Ms von Meding spoke a lot about the Children and Family Relationships Act and what we need to do to improve that. How do we get to that? At the end of the day, we will never be able to account for every single thing that happens in every single jurisdiction. It should not be constantly on the people here today to have to keep proving they are good people. It is really hard. They are saying, "I am worthy, I am good". How do we shift that? How do we move into actually looking into the raw detail of it and what we need to do to exercise children's and parenting rights in Ireland and take that responsibility away from the representatives? It is on us as well to stop looking for that proof of goodness or proof of ethics and figure out a way to do that as legislators in terms of frameworks and where we can and cannot regulate.

I was coming up with questions in my head. I was intrigued by Ms Wheatley's meeting with Ivana and I wondered if that was an optional matter rather than a protocol. If I start asking those questions, they are so relative to every single situation that, regardless of how Ms Wheatley answers that, she cannot account for every single place in the world. These questions are so individual and so relative to people's experiences that I am trying to figure out in my own head how we move away from that and figure out how we ensure our legislation in Ireland is reflective of our obligations to children and families. That is more an observation. I am thinking out loud about what we need to do. Maybe Ms von Meding would like to come in on the Children and Family Relationships Act because she focused on that in her presentation. Where does that Act have and not have jurisdiction? Where can it claim jurisdiction and so on? What do we need to do on that?

Ms Ranae von Meding:

I feel very deeply what the Senator said about those of us who share our stories feeling the need to prove ourselves as good people.

We are good people, but at the end of the day whether we are good people is not the issue. It is the fact that our children are being denied the protection of both of their parents. While Ms Delargy and I may not have the experience of having had a child through surrogacy, we both have the lived and real experience of knowing our children do not have the protection of both their parents.

In terms of the Children and Family Relationships Act, we are often asked, given that there is a framework now in place, why somebody would choose to go outside that framework. This relates to the draft AHR Bill also because some might say there is a proposed framework and ask why somebody would go outside that. In the context of the Children and Family Relationships Act, there are three reasons - circumstance, cost and choice. In the case of circumstance, there could be a couple who live abroad, had their children abroad and they are fully recognised as a family in that jurisdiction regardless of how they conceived, be it through surrogacy or donor-assisted conception. Once they come back to Ireland those rights are taken away and they are no longer viewed as a family. In my situation, our circumstance meant that we could not access the fertility treatment we needed in Ireland, so we went abroad and we had our children. We fought for a long time and, thankfully, we were retrospectively recognised as a family. We only got our children's birth certificates a couple of weeks ago and that was a very special day. I cannot wait to see my friends and colleagues experience that also. However, because of that circumstance and because we went abroad, it means, bizarrely, that if we choose to use our remaining embryos that are in a different jurisdiction, they would not be granted the same retrospective recognition so we would be back in the same situation. This is just to illustrate the different circumstances in which one might find oneself and fall outside the parameters of any existing framework.

In terms of cost, members are aware that the cost of fertility treatment is massive. For some families and individuals it is just not something they can undertake. They may choose to go abroad where the prices may be cheaper or they may choose not to use a clinic at all and do a non-clinical procedure, which is not currently covered by the framework.

The final thing is choice. Most Irish individuals have choice when it comes to reproductive autonomy, conception, pregnancy and childbirth, even choosing where and how to give birth. However, for some individuals, be they LGBT+ or they have a medical condition that means they have to access surrogacy, that choice is often taken away. LGBT+ people, especially, should have the choice of whether they want to conceive through a fertility clinic or not. I will not speak on behalf of my colleague, Ms Delargy, but I know it was important for her and her family that they did not conceive through a clinical setting. Having the choice to use a known donor was incredibly important to their family, and I know many families for whom it is incredibly important, but that falls outside of any existing framework.

It is very important, as part of the broader conversation, to look at the Children and Family Relationships Act, at what is missing there and at the two-tiered structure that has been created where some same-sex female families and their children have equality now and others do not. It would be very dangerous to create that type of two-tiered system again in the assisted human reproduction Bill.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I cannot see if Senator McGreehan is on campus. We can come back to her.

I refer to the point Senator Ruane made. She has me thinking now about it. It is true. As part of this process you are expected to come here, tell us your stories and be the perfect women, mothers and parents. It must be a very difficult place to be, to fight for what should be rights for your children and truly bare your souls. However, part of this process is that there is a major lack of understanding, and I speak for myself here. I came into this role not fundamentally knowing what the issues were, although one would hear a few tidbits here and there. There are many misconceptions and a lack of understanding there. It is a learning experience for us. I thank you because it is important that we hear about your lived experiences not only in this format here but also in a general public format. It is important we do that.

I do not have any other questions. My one question was about the ethical framework and the huge responsibility placed on you to do it in a way that everyone would deem acceptable. However, that is not your responsibility. It is the responsibility of legislators to make sure there is a regulatory system so that every parent who goes into it knows what the expectations are, and to have a set of guidelines for them so they can work through that.

My other questions have been covered. Is there anything you wish to add? I am mindful that we need to listen. Is there anything in particular you would like to cover? Then, unless there are other questions, we will conclude with Senator Seery Kearney.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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I am sorry, Chairman-----

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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We will go to Senator McGreehan and then to Senator Seery Kearney. Then we will go back to our guests for their final comment.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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My apologies. I have been like a headless chicken all morning running in and out. I thank the witnesses for their contributions. It is always lovely to see them. I thank them for sharing their knowledge, stories and life experiences. I find it profoundly sad and profoundly joyous to listen to the love and the joy they experience with their families now. We all are so lucky. Like Ms Wheatley, I have endometriosis and it can be a devastating disease. It was devastating for Ms Wheatley and I was in tears hearing her contribution. It cut deep for me, so I thank her for sharing that. It was not an easy thing to do to share it with us here.

A great deal was covered today. I have some simple questions for Ms Von Meding about the 2015 Act and the amnesty, where certain families were legally recognised. I apologise because I do not understand all of that, and I want to learn a little more. If a family has remaining gametes and embryos, do they fall outside that legislation or are they covered by the amnesty? We have the 2015 Act and we are now creating a new AHR Bill. Are there any lessons, mistakes or improvements that we can learn from as we move from then to now?

Ms Ranae von Meding:

In terms of retrospective recognition and the amnesty in the 2015 Act, there is an amnesty for children who fall outside the framework where an anonymous donor was used prior to 2020 or where an international clinic was used prior to 2020. That is how my family and children were granted retrospective recognition. However, if someone has embryos that were created prior to 2020 and if they are not in an Irish clinic, there is no retrospective recognition. If they are in an Irish clinic and they do not meet the criteria but they are in an Irish facility and there are existing siblings generated from the same donor, there is a timeframe within which those embryos can be used. I believe it was a two-year period, but I am open to correction on that. There is a very limited window for retrospective recognition.

There is no retrospective recognition where a known donor was used prior to 2020, where a non-clinical procedure was used prior to 2020 or when a child is born abroad prior to 2020.

On the learnings, it was wonderful to have the 2015 Act put in place and to create this framework where once we had nothing. It was amazing for all the families who got that day to finally celebrate both parents being recognised and both being legally connected to their children. However, as I mentioned before it created a system in which some children were now more equal than others and it almost created a minority within a minority. You had all these LGBTQ+ families who had been created through donor-assisted reproduction and you can look at two children and say "now you have equality but you do not because you were conceived in a clinic and you were not or because you were born in the UK and you were born in Ireland". For me, that would be the biggest learning to take from that. We cannot create a system in which some children are treated more equally than others.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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I thank Ms von Meding.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Senator Seery Kearney wanted to come in and Deputy Funchion had a query about the Canadian model.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Our guests may wish to come back with a written reply. I am conscious we are under time pressure.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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We have 20 minutes.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Do we? I thought we had to finish by 12.30 p.m.

Photo of Lynn RuaneLynn Ruane (Independent)
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I thought it was 12.30 p.m.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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Okay, we have gone over. I apologise.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I thank the Chair. I think she chairs exceptionally kindly-----

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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About ten minutes too kindly.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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-----and I thank her for her great indulgence. I say that as I stretch it a little bit. Clearly I am exploitative and manipulative.

I thank all members for their contributions but Senator Ruane's contribution has been a seismic shift; I acknowledge her all-time genius but particularly today. I met a couple and when Ms von Meding was on the radio I texted in abruptly about it and did not explain it very well. The couple said they feel they have to be the very best lesbians there ever were in the whole world. I started to cry. I welled up imagining it. It hit home far too much for me that there is this obligation to prove I am not a child-trafficker, not an exploiter of women, that I have not bought my child. I have not done any of those things. You go on a long list and that arises out of the stigma, the stereotyping, the language and the manner in which people are described or allusions to the extreme cases. The norm is the stories in this room and all the other ones behind it. On the one hand it is important we put in due diligence and guidelines but within that we need to not be so restrictive we oblige people to prove a relationship with the surrogate mother where she does not want it, where it may not be a healthy thing for there to be a relationship. Not everyone would necessarily have the boundaries that Ms Wheatley and Ivana have with each other. There is the recognition of vulnerability but also the fact we are going to the heart of identity and ensuring a child knows who he or she is, who his or her genetic parents are, his or her lived experience of who his or her parents are and the precious place in his or her life of the woman who gave birth to him or her. I thank the Chair.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank the Senator. As I did offer, Ms Wheatley wishes to add something. I ask her to be very brief.

Ms Cathy Wheatley:

I thank the Chairman. There was one thing I wanted to pick up on. I thank Senator Ruane for what she said because we very much feel there is a spotlight on us as parents and a burden of proof on us to ensure we can show we have done the right thing. Like I said before, we bear witness to our children and they are the ones we answer to. On some of the misconceptions around surrogacy the Chair talked about, in particular to do with a question from Senator Keogan earlier on about the surrogate mother and the birth mother and that situation, in surrogacy and the surrogacy we availed of, the surrogate is a gestational carrier. She has no genetic link to the child. Obviously she gives birth to the child and her place needs to be recognised in that but she is a gestational carrier and that is the term we use that they are happy for us to use as well.

That then leads on to the situation of birth certificates whereby if we have this thing of the surrogate being named on the birth certificate, that piece of paper is one your children must produce regularly throughout their lives. I would not want to see children who are being in some way marked, standing out or stigmatised because there is a birth certificate. The UN convention says our children have the right to a private life and that needs to be upheld. In that regard, for all of our children, that needs to really be considered because this information is their private information as they go through life. Obviously, I have been very public with mine but it is about who they want to share their story with and who they do not want to. To have to produce a birth certificate that exposes them, given all the crazy things you need your birth certificate for - I do not want to see children being stigmatised and do not want to see them being marked in some way by the method of their conception.

Ms Ciara Merrigan:

If I may come in as well I can reply to Deputy Funchion. I have felt over the last couple of weeks there has been a bit of misunderstanding about the Canadian model. It is important to mention Canadians also go internationally for surrogacy. Even though they have their own domestic model, not all Canadians have their babies through the Canadian system. They also avail of surrogacy in the likes of Ukraine. They have legislation for international and domestic surrogacy so it would be important we look at both of those models. Irish Families Through Surrogacy have sent a submission to the committee and it is all outlined in that and the solutions are outlined in that.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank Ms Merrigan for that.

Photo of Jennifer WhitmoreJennifer Whitmore (Wicklow, Social Democrats)
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I thank all our guests for coming in and engaging so honestly with us. I hope we will come out with a good set of recommendations at the end of this entire process.

The joint committee adjourned at 12.47 p.m. until 11 a.m. on Wednesday, 11 May 2022.