Oireachtas Joint and Select Committees
Thursday, 19 May 2022
Joint Oireachtas Committee on International Surrogacy
Preventing the Sale, Exploitation and Trafficking of Children: Discussion
Apologies have been received from Deputy Murnane O'Connor and Senator Ruane. We will have two sessions today. The first session will consider the issues of preventing the sale, exploitation and trafficking of children born to an international surrogacy arrangement, and protecting the right of the child to his or her history and identity, including the child's genetic, gestational and social origins and ensuring that existing children born through international surrogacy arrangements can also exercise their right to their history and identity, including their genetic, gestational and social origins. On behalf of the committee, I welcome former UN special rapporteur on the sale and sexual exploitation of children, Ms Maud de Boer-Buquicchio, and Ms Tanya Ward and Ms Julie Ahearn of the Children's Rights Alliance.
Before we begin, I will read a note on privilege and some housekeeping matters. All 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 might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory relating to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
There are some limitations to parliamentary privilege for witnesses attending remotely from outside the Leinster House campus and, as such, they may not benefit from the same level of immunity from legal proceedings as witnesses physically present. Witnesses participating in this committee session from a jurisdiction outside the State are advised that they should also be mindful of their domestic law and how it may apply to evidence they give.
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 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 in order 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 Microsoft Teams to confirm that he or she is on the grounds of the Leinster House campus prior to making his or her contribution to the meeting. I remind those present to wear masks where possible throughout the meeting and that they should only be removed when speaking.
Ms Maud de Boer-Buquicchio:
I thank the Chair for allowing me to address this meeting of the Oireachtas Joint Committee on International Surrogacy. It is an honour for me to share some considerations with regard to the regulation of surrogacy. Surrogacy is increasingly used as a means of family formation, including in cross-border situations. The interests of multiple stakeholders are often prioritised over children born from surrogacy, to the detriment of their rights in the UN Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. These rights include among others, the right to non-discrimination, identity, nationality and the child’s best interests being the primary consideration. It equally includes the right of the child to not be sold, which is defined in Article 2(a) of the optional protocol as, "any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration".
The issue of surrogacy is complex due to diverse views. Some believe there is a broad right to procreate that should be available to all without discrimination and that prohibiting surrogacy would create underground markets. Therefore, regulation is necessary to create safe surrogacy practices that would effectively balance the rights and interests of all. Others are of the view that any regulation of surrogacy, including prohibition
of sale alone, would nevertheless lead to legalised markets in children.
We can at least agree that all situations that lead to the sale of children should, as a minimum, be prohibited, many of which I have identified in my report to the Human Rights Council in 2018 when I was the UN special rapporteur on the sale and sexual exploitation of children. To complement this report, I prepared a study on safeguards for the protection of the rights of children born from surrogacy, submitted to the UN General Assembly. The UN Committee on the Rights of the Child has also pinpointed specific country situations when examining states parties when sale may occur.
In 2021, the Verona principles for the protection of the rights of the child born through surrogacy were launched. Principle 14 deals with the prevention of the sale, exploitation and trafficking in children. In 2022, UNICEF and Child Identity Protection, an NGO of which I am the president, published a briefing note on children’s rights and surrogacy. It notes that:
Children are at greater risk of being sold in commercial surrogacy arrangements. Sale and trafficking of children born through surrogacy is occurring, especially in [international surrogacy arrangements] ISAs, due to a lack of protective safeguards being implemented by States.
Based on these observations, the line is not between regulated and unregulated commercial surrogacy, rather between rightly regulated commercial surrogacy and both unregulated and wrongly regulated commercial surrogacy.
Sale can occur in both regulated and unregulated contexts. The first is when surrogacy arrangements occur in a legal vacuum where market forces prioritise profit. The second is when surrogacy arrangements allow parentage to be determined pre-birth. Even in a well-regulated context, such as in some states in the United States, the Committee on the Rights of the Child has observed that laws may be designed in a way to allow for transfer of the child in exchange for remuneration or any other consideration.
The third is when the surrogate mother physically transfers the child for remuneration or any other consideration, there may be sale. Payment for her gestational services is accompanied with the transfer of the child. The fourth is when intending parents are genetically linked to the child they may participate in child selling if they pay for exclusive parentage and physical custody, or both.
I would like to make a number of recommendations emerging from these studies on the regulations needed to uphold all children’s rights in surrogacy arrangements, including the need to prevent the sale of children. By definition, altruistic surrogacy cannot lead to the sale of children as a gratuitous act. To avoid sale in these situations, reimbursements should be itemised and reasonable, or both, in order to avoid any potential disguise of payments for transfer of the child. While regulation is helpful, it should not allow for legally binding contractual relationships between the surrogate mother and the intending parents established pre birth where the transfer of the child, physical and legal, or both, is dependent on any payment or any other consideration. This can occur in situations where, for example, the surrogate mother may receive all payments and still have a reflection period post birth. When safeguards are not fully aligned with the child’s rights in the UN Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child, a post-birth best-interest determination, BID, should be conducted. If sale occurs, both the immediate needs of the child and long-term considerations should be factored in. Careful attention should be given to how the children may feel when they are older if their intending parents participated in the sale and that the state nevertheless placed him or her with them. For ISAs, particular attention should be paid to the risk of statelessness. All states, including Ireland, must ensure that any laws that may be relevant to surrogacy are clear on the prevention of the sale of children.
I thank Ms de Boer-Buquicchio for her contribution. She has to leave by 10.15 a.m. so I will invite members to ask questions but we will have to limit both the questions and answers to three and a half minutes. If there is any further time, we can have a second round. We will come to our guests from the Children's Rights Alliance for their opening statement after that.
Good morning to Ms de Boer-Buquicchio. I thank her for giving of her time this morning. Her opening statement well signposts the two reports that she wrote and submitted to the UN General Assembly. In the conclusions to her 2018 report Ms de Boer-Buquicchio states, "Commercial surrogacy could be conducted in a way that does not constitute sale of children", and she goes on to explore that. In the report we have the detail: that the surrogate mother is the "mother at birth"; that she is under no "legal obligation to participate in the legal or physical transfer of the child"; that the payments must be completed prior to the birth and then there is the post-birth legal transfer; that the surrogate mother can be legally obligated to share parenting of a child but not be obligated to relinquish her status; and that the transfer after birth must be a gratuitous and altruistic act. Ms de Boer-Buquicchio lays out a template there. We are in the difficult position whereby some surrogacies are termed as commercial when there are compensated elements such as the Canadian model. Were we to not facilitate that then same-sex couples in Ireland may not have an option to have children via surrogacy. Can Ms de Boer-Buquicchio confirm that this is generally the order that needs to happen in order for the no-sale element to be constituted within the commercial surrogacy arrangement?
Ms Maud de Boer-Buquicchio:
The Senator referred to my 2018 report and accurately summed up the situations where commercial surrogacy would not be considered a sale. What is essential in this summing up is that you can conclude that the surrogate mother was only paid for gestational services and not for the transfer of the child. This means that the surrogate mother must be afforded the status of surrogate mother at birth and must be under no contractual or legal obligation to participate in the legal or physical transfer of the child. Second is the severance of the payment from the transfer, which can be achieved by ensuring that the payments are made to the surrogate mother prior to the post-birth legal or physical transfer of the child. I would add that these payments should not be reimbursable and that if the mother should choose to maintain the parentage and parental responsibility she may be legally obligated to share parentage with others, including the intending parents. That means she would not be obliged to relinquish her status by the surrogacy arrangements. These are the crucial conditions which would allow for a legal pathway to regularise and legalise surrogacy but under those conditions.
Good morning to Ms de Boer-Buquicchio. I thank her for coming here. Much of the discussion of this committee has treated commercial international surrogacy as a fait accompli; that it does and will occur and we must legislate around it. I must say the Verona principles paint a stark picture of the closeness of the practice of commercial international surrogacy with the sale of children. Out of the three criteria for categorisation of the sale of children, this form of surrogacy always contains two criteria and only does not contain the third criterion due to the legal contract hair-splitting. Paying for gestation with the shared understanding of subsequent transfer is paying for transfer by other means.
Ms de Boer-Buquicchio proposed a legal solution in her 2018 report to question how we make this not be the selling of children by leaving the transfer of the child entirely up to the surrogate mother. Surrogate mothers who intend to continue to take clients in the future will need to be true to their word or else it would be bad for business but people doing it as a once-off then have no obligation to fulfil their end of the agreement and the people availing of the surrogacy service have no recourse under law. Is this really a satisfactory state of legal affairs? If the solution to this abolishes the distinction between commercial international surrogacy and the sale of the child, where does that leave us?
Ms Maud de Boer-Buquicchio:
The Verona principles have been discussed at length between a number of international legal experts on the matter. I was not formally part of this group although I attended some of its sessions. Principle 14 accurately sums up the permissible approaches to commercial surrogacy, in particular the question of when it is possible to separate, as I said before, the payment for gestational services from payment for transfer, in which case there is no payment for transfer and hence, no sale of the child.
I think the Senator mentioned that the surrogate mother is exclusively responsible for the decision to transfer the child. What matters in this context is what happens before that, namely, the pre-birth assessment of the suitability of the parents, and what happens after the birth, such as best interests and the needs determination, because circumstances may change. It is always essential that such a best-interest determination to take place post-birth.
In addition to that, it would be imperative to allow the birth mother, or the surrogate, to have the legal parentage at birth. There should nevertheless be a reflection period during which she can change her mind as to whether she wishes to transfer the parentage to which she has previously agreed or to share it with the intending parents.
I will quickly ask a question. I was wondering about the rights of a child to identity. There is also a right to non-discrimination, including the right of non-discrimination of their parents. When we are talking about identity, how do we balance the right of a child to their identity with that of discrimination? We have discussed whether the name of a surrogate should be on a child’s birth certificate, or whether it should be registered but kept separately on a private register to which the child and the parents have access. There is a fear that if it is on the birth certificate, it becomes public information. That could then lead to some element of discrimination against the child and potentially their parents. What is Ms de Boer-Buquicchio’s view of that instance? How would she balance the right of a child to their identity with the non-discrimination element?
Ms Maud de Boer-Buquicchio:
I thank the Chair for that question. I agree that this is a difficult area, but I think it can be solved by, for instance, informing separately. The birth certification is public, so it should not contain any reference to the fact that the child was born differently from traditional family formation methods. However, we must reconcile their rights. I have seen an example in Victoria in Australia, where all donor-conceived children - the term “donor conceived” also applies to these kinds of arrangements - have equal access to information, regardless of their mode of conception. There are contact data preferences, which allow them to access identifying information on the donor. The donor can also decide if they wish to have no contact or a certain type of contact with their descendants. When donor-conceived children apply for their birth certificate as adults, they will be informed that more information is available about their birth. If they are not already aware that they are donor conceived, then they are likely to find out when they ask about this additional information. There are, therefore, ways and means to avoid the risk of discrimination. The United Nations Convention on the Rights of the Child applies to all children. This is in respect of all the other rights, which I have not mentioned, such as access to health and education. All of these should be granted to every single child, without any discrimination. That also covers the right to identity.
Ms de Boer-Buquicchio is very welcome. Her contribution was really interesting and important. It is beginning to frame in my mind where the regulations need to begin and how we start to control and to properly safeguard international surrogacy, as well as surrogacy in general. Ms de Boer-Buquicchio’s raised the point about the pre-birth transfer and whether there is any compensation involved. From her experience, is there a country that has been doing this, where this does not constitute the sale of children? Is there a country that could be considered the best boy in class on this, let us say? I ask this because we need to make sure we have all the safeguards in place.
Ms Maud de Boer-Buquicchio:
I really appreciate the Senator’s question. If only I could answer by giving her one example of the perfect country but it simply does not exist. We can find good elements here and there. Sheer prohibition is not a solution. There are examples of countries, and I will give one, that safeguards best interests, the determination and the fact the transfer is not pre-established pre-birth. That country is Israel. I referred already to the need for a reflection period, which exists under law in Israel. I think that period is seven days. During that time, there is the appointment from birth of a legal guardian. That is an additional safeguard. It is only after that reflection period that the birth mother can decide, with all the guarantees. In the meantime, there is a best-interest determination. This is not just an assessment, but a determination. Then everything should be fine. I refer only to this aspect. There are other aspects in Israel’s legislation that are perhaps not so satisfactory. I do not remember the details, but there is the issue as to whether this should be limited to citizens of Israel only. There may be conditions that do not meet other requirements that the Senator might consider to be essential.
There is no perfect country. As legislators, the members have a huge responsibility. If they try to analyse what situations they would like to avoid, I think that will guide them. Hopefully, my reports that go into detail, including on the identity issue, may provide that guidance. However, who am I? I am no longer the special rapporteur. I did it a few years ago. It is important to note also that the committee on the rights of the child identified a number of situations, in particular where the contractual enforceability is part of the legislative framework, that are against the rights of the child to not be sold.
I, too, am in the same place as Ms de Boer-Buquicchio regarding sheer prohibition. It will not address the best interests of the child. In Ms de Boer-Buquicchio’s reports, she has set out clearly when a sale occurs and when it does not.
I think that is a very important distinction for intending parents to understand, because I think that people approaching surrogacy are coming from a point of view of only contracting for gestational services, without realising the subtleties that Ms de Boer-Buquicchio very clearly set out in her 2018 report. We have been speaking about that. We have a special rapporteur in Ireland who has issued a report that recommends a period of reflection also and there are other elements like that in it. We have perhaps the opportunity to become that country about which she will be able to say, "in other circumstances".
One of the elements in the 2019 report, in which Ms de Boer-Buquicchio responds to the submissions of stakeholders, is that she focuses on intermediaries, and a lot of the feedback appears to be on the fact that it is the intermediaries that are problematic and create the environment of sale. Would she like to expand on that please?
Ms Maud de Boer-Buquicchio:
I thank Senator Seery Kearney for the question and for insisting on the importance of the sale dimension of these surrogacy practices. Of course, the sale of a child is a crime, and it should be a crime under international law. That is what the optional protocol requires.
The other question is to what extent we wish to prosecute surrogate mothers who are involved in this process. That is very much linked to the question of the role of the intermediaries. I do not think it would be fair to prosecute, especially surrogate mothers who have accepted this process under some degree of constraint, either directly or because of their vulnerability, because they have come from poor backgrounds and they simply needed the money. What matters here is to identify the role of the intermediaries, who are at the origin of the whole process and who look for these vulnerable persons to engage in this process.
Intermediaries cannot always be easily identified but it is those who profit from the agreement. I would definitely exclude from the category of intermediaries the medical staff who merely support the physical process. However, at the same time, if the remuneration for these medical or paramedical services goes beyond reasonable and itemised expenses, then clinics and sometimes individual doctors may be regarded as being intermediaries and therefore playing a complicit role in the commission of a crime. This is the reality, and it is important to try to analyse on an at-home basis what has been the role of the intermediary, who has been the intermediary, and whether the clinic, for example, simply provides the facilities once the agreement has been reached between the parties without any implication. Sometimes it goes far beyond that and then we have a much more doubtful role of the intermediaries, who should really be sanctioned.
I thank Ms de Boer-Buquicchio for her comprehensive answering of all the questions. It certainly helps us to understand the issue a lot better.
I have read the statement and I do not know how many times in the document I have read references to "child selling", "transfer of the child", and "sale of the child". That is a massive worry for me. Article 2 of the CRC clearly refers to the right of the child not to be sold. Does she find this method of parenting exploitative, both for the child and for the surrogate mother? What are her views on that?
Ms Maud de Boer-Buquicchio:
It depends. For instance, it depends on the surrogate mother. In the United States, very often it is a choice of women who feel they are autonomous in their decisions about their sexual and reproductive health. They do not feel under any constraint, and they do it because they believe that it is a good thing to do and it is not because they need the money. It depends very much on whether the Senator extends the term "exploitation" to surrogates.
Ms Maud de Boer-Buquicchio:
Yes, in developing countries such as India or Cambodia, countries where people are in need of financial support. As to the exploitation of the child, I hope this will not open the debate on whether a child who is not yet born can be regarded as a child under the Convention on the Rights of the Child and it opens a discussion on the right to abortion. That should be avoided. What is important is that it is inherently exploitative of the child if his or her future is determined without considering the best interests.
Ms de Boer-Buquicchio said something about the birth registration, which worried me as well. It concerned identity. It was stated that all parties do not need to be mentioned on the birth registration. Could she elaborate on that? Does she believe a child who is born through surrogacy is not entitled to its full true identity?
Ms Maud de Boer-Buquicchio:
No, I would definitely prefer and hope that the name of the birth mother is on the identity document. That is mater semper certa est. It is a basic principle. The question is whether we add information on the conception and how that has been achieved. That is something which can be held separate. Perhaps Senator Keogan misunderstood-----
I am glad I got here in time to ask a question, as I was listening online. I thank Ms de Boer-Buquicchio very much for being here, for the document she sent us, and for her presentation. They have been very helpful.
I really agree with what she says about prohibition not being the answer. That is one of the key points. If we make something totally illegal, we are not living in the reality of the modern world we live in nowadays. It is important that the message goes out that what needs to happen is good, robust, strong legislation and regulation so that there are proper practices and that we will not have the exploitation of either women or children.
Some of the questions I was going to ask have already been asked. I want to ask about the pre-birth versus post-birth parentage situation. Personally, I think it is better to have a pre-birth model because for the child there is no question mark over who the parent is. We heard a few examples of where children were born prematurely and they needed medical intervention. That situation can be difficult if there is any sort of question mark over who is the legal guardian or parent who makes those decisions.
Many surrogate mothers do not see themselves at all as the mother and are very clear about that. It kind of protects them as well. The example Ms de Boer-Buquicchio gave of a seven-day cooling off period, for want of a better phrase, potentially is a possible solution to that. Could she expand a bit more on that, also bearing in mind that, as I said, surrogate mothers in many cases do not see their role outside? They do not see themselves involved. There is no genetic link in many cases. We need to respect that too.
Ms Maud de Boer-Buquicchio:
I thank the Deputy very much. I think what she is referring to in her question is the need for legal certainty as seen from the perspective of the child. I am afraid that is a very risky concept in this context because there are certain considerations. It sounds convincing but at the same time, it does not leave any room for possible best interests determination and, in particular, an assessment of how the process prior to the birth took place and whether there was any coercion. It really would legalise enforceable pre-birth contracts, which include a transfer of the legal parentage at birth. As that is exactly what we do not want, I do not think it is an argument. I do not think we should use it in this particular context.
The other thing I would like to say, which is actually what the Deputy started with, is that it is very important to realise that prohibiting commercial surrogacy is as important as prohibiting sale and, therefore, avoiding the creation of black and grey markets in the practice of surrogacy.
Ms Maud de Boer-Buquicchio:
That is a very good thing. Because of that, however, at the same time, people tend to interpret the concept of sale in a restrictive way to not be too uncomfortable. We do not want to do that. We want to create legal pathways. We should please stick to the concept of sale, however. It is something that should not be allowed and it has very clear elements. It is transfer, payment and the exchange of payment for transfer. These are the three interlinked elements that define sale and that should be avoided.
I thank Ms de Boer-Buquicchio very much. I will come in briefly because I want to clarify the question I raised earlier about the birth certificate and the balancing between the rights of a child to his or her identity and the rights to non-discrimination. Because surrogacy is one of those issues about which people hold passionate and often quite divergent views, there would be a risk that were a publicly-available birth certificate that listed a surrogate on it to be made known to the public, there could be some element of discrimination against the child on the basis of his or her origins. Is it the case, therefore, that a child's right to his or her identity can be met through a non-private register of identity rather than placing the name of the surrogate on a publicly-available birth certificate?
Ms Maud de Boer-Buquicchio:
I am afraid this is very difficult to answer. The access to identity information should be facilitated in accordance with the age and maturity of the child. How this should be done and how the civil registration and vital statistics system should include and preserve identity information relating to each child born through surrogacy is something to which I do not have a final answer. I did not suggest initially or during my presentation that when the surrogate mother should be identified on the birth certificate, it should say a person was only a birth mother or only a surrogate birth mother. It should be her name and then all the rest will have to be dealt with, as the Chairman suggested, perhaps, in a separate confidential register.
Okay. I thank Ms de Boer-Buquicchio for coming in this morning. We have gained much from her expertise and her work in this area. I thank her very much for giving up her time. I know she has to go early. I thank her for her contribution.
Ms Tanya Ward:
I thank the Chairman for the invitation to address the committee. As members will know, the Children's Rights Alliance is an umbrella organisation with more than 140 members. It is our goal for Ireland to be one of the best places in the world to be a child. We do that by promoting the UN Convention on the Rights of the Child. I say that specifically because this is very relevant to the discussion we are having when it comes to surrogacy. I thank the committee for its work in this area because this has been a very difficult area for many children and families in Ireland. There are many different factors and considerations. From our perspective, however, this needs to be looked at in the best interests and from the perspective of the child. That is the way to resolve these issues.
The committee has already seen, through the different inputs it has received, the issues that are happening to children who have been born through surrogacy. Some of the bigger issues are statelessness, lack of protection of identity and not having a legal relationship with the people who care for and look after the children. Obviously, there is legislation before the Houses at the moment, such as the Health (Assisted Human Reproduction) Bill 2022, which provides a basis now to regulate domestic surrogacy.
One thing we in the Children's Rights Alliance think would be very important, and members will see this in our opening statement, is a focus on the best interests of the child and developing a sophisticated approach in that regard. Obviously, children have a right to ensure that the best interests of the child are a primary consideration in all actions concerning the child. The Constitution actually goes further when it comes to access, custody and parentage, as does the convention, which states that "the best interests of the child shall be the paramount consideration." They are the supreme consideration, essentially.
We believe there is a need to amend the health legislation that is before the Houses at the moment with regard to the best interests. There are a number of ways to address this. The minimal approach includes the best interests as an interpretive principle. It would say that all matters concerning the child need to consider the best interests. The challenge with that approach, if we look at the way that has been interpreted in Irish law, is that there are examples of both minimal compliance and of gold standard approach, essentially. Minimal compliance is where there is a clear statement that the best interests of the child should be considered. We see that in relation to, let us say, the Child and Family Agency Act 2013, which has that as a principle. What happens in practice, however, is that it really goes down to each individual decision maker and how he or she interprets it. Generally, the research will show that a decision maker can do it very paternalistically, and it is essentially left to the lawyers and the courts to work out whether and in what circumstances it should be expanded upon. The gold standard approach, which is what the UN Convention on the Rights of the Child would recommend, and we have an example of that in the Children and Family Relationships Act 2015, is where one actually provides a test. Therefore, when interpreting what the best interests of the principle are, the judge or decision maker has seven or eight different things to consider. We think this is something that needs to happen to this legislation.
Members will see in our submission that the Verona principles are relied upon to expand upon what that would look like when it comes to the surrogate consideration. We would say, at a minimum, that is something that needs to be added to the legislation. I think the aspirations of people in the country would be to go for the gold standard approach when it comes to surrogacy arrangements because it is fraught with many different challenges.
The other issue brings us down to the right to identity. The UN special rapporteur has been before the committee. I am delighted we had the opportunity to appear in the same session as her. The UNCRC is very clear about the children’s right to know and to be cared for by their parents insofar as possible. The term “parents” includes birth parents, genetic parents and those who care for a child for significant periods. It also provides that a child has a right to be registered immediately after birth and has the right to acquire a nationality, and places a specific obligation on the state to ensure that rights are implemented, in particular, where a child would otherwise be stateless. Preserving the identity of a child, their nationality and their family relations are, therefore, all key.
It is welcome that in the draft health Bill that is before the Houses there is the creation of a surrogacy register in which that information is to be provided. The challenge is for children who were born through international surrogacy is that the same form of protection would not be provided for them. That is an omission that would amount to a form of discrimination if children were to be born outside of the State and there was not an attempt to preserve, protect or recognise their identity. Of course, there is a precedent for doing this. The Children and Family Relationships Act 2015 includes a provision for the donor-conceived register, but it also provides for children who had been conceived outside of the State, or where an IVF clinic had been involved outside the State, the information could be added to the donor conceived register as well. There are, therefore, legal solutions that we can find to try to address this as an issue.
This brings me to the final, broader point about the need to legislate in this area. This is coming through from the key bodies that are concerned about the welfare of children. These include the UN special rapporteur, the Ombudsman for Children's Office and the Special Rapporteur for Child Protection, Professor Conor O’Mahony. We would recommend that as well, as would the UN committee on the rights of the child. Notwithstanding the rights and wrongs of surrogacy, we can see that the special rapporteur has outlined clear procedures to protect against the sale of children, which acts as a good guide, as do the Verona principles. They should be incorporate as far as possible into the legislation. That would give us the best protection for children.
If we do not legislate in this area, we will continue to see situations where children are conceived in potentially very exploitative circumstances around the world. They will arrive back and again be faced with the same problems. For instance, their identity has not been protected, or there has been exploitation of their commissioning parents. They may find out that they are not even genetically connected to the commissioning parents. That is probably one of the most serious things that has happened, and the committee members will have heard about it at the committee. We believe there is an onus to provide a legal framework to resolve these issues. The way the State has approached it is to try to discourage it by having a legal framework and to make it difficult. There are other ways of dealing with that situation. Policy and other approaches can be used to discourage people who are desperate to become parents from going to countries or using services where there is likely to exploitation of women, where there is poor protection of children, where the sale of children is prevalent and where their identities are not protected.
I thank Ms Ward for her patience in waiting. We appreciate that.
Her submission is comprehensive, which helpfully sets out a framework for us. I agree with her latter comments. We have had prohibition by stealth and if we fail to act on the recommendations of this committee, presuming that they are in line with what Ms Ward and many others have suggested, we will likely end up with prohibition by stealth. Let us name it for what it is.
We must understand and highlight how the best interests of the child are interpreted. Ms Ward set out three fundamentals, the first of which is the substantive right that the best interests of the child is the primary consideration. The second is that the outcome of any decision-making is in the best interests of the child and has that at its core. There is also that the evaluation of impacts has the best interests of the child in place. There is a positive and a negative. That leaves us with no choice but to legislate for international surrogacy.
Then the question arises of providing a mechanism that begins before the conception of a child that arms intending parents with information; has a threshold that has to overcome; provides for counselling; and has a full awareness of - if we are to interpret Ms de Boer-Buquicchio's comments - that idea of a “sale”. I guarantee the committee that if we now did a survey of intending parents and existing parents, they would say they understood what were going into in respect of surrogacy is they were contracting for gestational services. They would be appalled by the "sale" element, and by the nuances of it. We, therefore, have to first arm people with that understanding. Women who require surrogacy services may have come through a long IVF route whereby they are trusting medical practitioners. They are in that frame of mind where they trust that the people in the white coats that they are not in an exploitative situation and, therefore, it is important to arm and to equip couples with that pre-knowledge.
I am keeping an eye on the clock, but it seems to be all over the place. I apologise. I will keep going but I am not sure what is happening.
My conclusion is that we must legislate for the best interests of the child. The Verona principles seem to incorporate everything we need. I am a bit disturbed by the latter end of the Ms de Boer-Buquicchio's contribution. I would appreciate Ms Ward’s comments on that.
Children who have been born abroad generally have a birth certificate from there. We cannot legislate in Ireland for what goes on a birth certificate in another country. In another country, the intending parents can be on the birth certificate. A surrogacy and a donor register, therefore, would seem to ensure that the integrity of a child’s identity is preserved in Ireland. It would also seem to ensure that we would have some threshold in Ireland before conception that would ensure that that will be in place.
I want to say categorically that I have no desire for the surrogate mother’s name, or her existence, or a relationship with her, to be obliterated under any circumstances. However, a child has to produce a birth certificate when going to school. There are many instances in our lives when we have to produce our birth certificates. The birth certificate may be produced in a different country because this is international surrogacy. It will have the intending parents listed on it. The child’s passport will list the place of birth of that child, though their nationality will be preserved on the passport as Irish but the place of birth will be listed as the different country that is consistent with the birth certificate.
We cannot legislate for the information that goes onto a birth certificate in a foreign country for a start because we do not have the jurisdictional reach to do that. I concur with where the Chair was going on the point of having two registers. It would preserve in a formal, legal way an obligation on parents who pursue surrogacy to ensure that a child has a mechanism. One would hope that parents would not rely on a register and that they would tell their child from birth anyway. Yet, that latter end has left an anomaly that is not in the best interests of the child because it will expose that child, or someone who may not be in the daily life of that child, to that. For instance, if we produce a birth certificate in the child’s school and Jennifer's name is on it, rather than Mary, the school might suddenly become aware of something going on. They might ask if these are not parents of the child, and what the position of this mother is. I am not sure that that is in the best interest of the child and, therefore, yes, I am boiling it down to that.
Ms Tanya Ward:
If a birth certificate is issued in another country and the commissioning parents are named on it, that is a fact and that is what is going to happen. That is what it is. We just have to recognise that. It is hard for us to disagree with the UN special rapporteur, because she is part of the UN infrastructure and she is saying that it should be part of the birth certificate.
We obviously have the power to issue birth certificates in this country. She is saying it should be part of the birth certificate issued in this country because it is a legal fact, in addition to being a protection for identity and a protection against the sale and exploitation of children down the road. She is looking at it from that perspective. She is sticking to a few core principles, when she looks at what is happening in this space globally.
I agree there is an issue with privacy. I know someone with an adoption certificate. One of the things people get a shock about is when an individual has an adoption certificate. My biological mother is named on it but people do not realise that. I understand what happens is children experience schools asking how come they have this. It opens the door to some interference in the child's life. I wonder is there another way to deal with this that is between short and long birth certificates. Are there other ways to show the legal fact is the legal fact? The short birth certificate might be a practical way around it.
Ms Julie Ahern:
It is part of a bigger conversation we need to have around birth registration. There are adoption considerations and other ways. Maybe the issue of the short- and long-form birth certificate is something to think about in a wider sense for many other different family arrangements, including donor-conceived, potentially.
I feel I have been gazumped because I was just about to talk about the short- and long-form birth certificate. I have asked my personal assistant to look up why we stopped using short form. It was stated everywhere that a long-form certificate must be submitted, so the short-form certificates kind of became defunct. There are many situations where a private long-form birth certificate with all the information, whether it relates to the donor, surrogacy, adoption or all that stuff, should be there from the start to facilitate those conversations from the beginning, in addition to the short form.
Fostering is the other matter that comes to me, where a child is in foster care, is going to school and the birth certificate has to be presented. The school should know about the situation, and that is pertinent to other things, but one form of the birth certificate is a private document and one is a public document. The question is why we stopped using short-form birth certificates. What were the deficiencies and how do we correct them? We will then automatically create the two parts and will not need to create extra registers all over the place. We can talk about the grim spectre of cyberattacks and that sort of thing. It would be very useful for us to look at, possibly through submissions, the long-form and short-form versions and talk to those in social welfare to ask why the hell they stopped using short form. It could be a very useful thing.
I apologise for being late. I missed a very interesting earlier session but I was listening in the car. I will pick up on Deputy Funchion's question in the last session about the best interests test and, if such a test is required, it has to be done after birth, whereas it could be argued legal certainty is also in the best interests of the child. That need requires some process pre-birth. I will leave it there. There are dangers to thinking out loud in public session so instead of coming out with a half-formed thought that may turn out to be best left half-formed, I will save it for private session.
Ms Julie Ahern:
The discussion about where legal certainty needs to lie is very interesting but it is very clear, under international human rights law, there needs to be both pre-birth and post-birth consideration. We need to look at trying to set out some of the legal certainties that can be done pre-birth and, post birth, the best interests consideration. In a sense, that is non-negotiable. If we are looking at it from the perspective of the protection of children and protection of their rights, a post-birth assessment would be done in every situation. There are issues around the right to access healthcare and what happens if there is a difficulty there but, as the special rapporteur said, there are other jurisdictions to look at - she mentioned the Israeli example - where a legal guardian can be put in place during that cool-off period when the best interest determination is considered. It is worth looking at those aspects for legal certainty but if we are looking at it, as Ms Ward mentioned, from the perspective of the child and what is in his or her best interests, a post-birth determination of best interest has to be carried out.
One of the examples from a previous session was that of a child born to UK-intending parents by a surrogate mother in Ukraine. It has a very different system where she is not considered the birth mother but, in the UK system, the intending parents are not automatically considered the parents. That is where we get the lacuna. Is it about saying we will only accept surrogacy from a certain place, if it matches our system? It is like trying to match up a jigsaw piece. We then risk cutting out many countries and in a way saying they have to play by our rules which, when it comes to inter-country adoption, is easier because we have all agreed a set of rules under the Hague principles and we do not necessarily have anything here like that.
I am loath to say we are not allowing a certain country because of what may be a minor technicality. I am thinking out loud but if we are looking to set a standard here, and we are saying we will allow inter-country adoption if it meets this standard, that standard needs to include something around how we prevent statelessness. If the unintended consequence is certain countries get dropped off the list, we need to be careful about that but that is something we need to think through because, ultimately, it is about the best interests of the child. It is then around how much scope we have to dictate to other countries and a whole other mess, but that is what we are paid to deal with.
Ms Tanya Ward:
Inter-country adoption is an excellent example of how this would work in an ideal world, if we were working with another country that had similar approaches. One of the things to think about, when legislating for altruistic domestic surrogacy, we may find more of it happens in Ireland now and not as many commissioning parents need to go internationally. In an ideal world, we would have regulation moving in that direction, where countries sign up to bilateral agreements in which the same legal standards are in place so we can be sure a country is a safer place where a child could be conceived, and there is more guarantee the mother is less likely to be exposed to exploitation, but we are not there yet. That is the challenge.
In the interim, having some basic protections and, as Ms Ahern said, best interest assessments, and maybe through policy trying to discourage people from going to countries where they exploit children and women in surrogacy arrangements, will help to eliminate those kinds of situations. People are very vulnerable and are getting bad advice. There are intermediaries in the middle misadvising them and there is a need for the State to step in and try to intervene to stop that. That is, in essence, what was done with adoption. The State stepped in on adoption and changed the landscape relating to it.
Ms Julie Ahern:
We could build into the best interest assessments, if we were to bring them into legislation, the risk of statelessness as being one of the key considerations and try to create a regime where those assessments could be done very quickly. It does not necessarily have to be a long, protracted process. Strict regulation could be put in place stating when and how quickly assessments would be carried out and one of the factors could be the risk of statelessness. The reality is children will continue to be born through international surrogacy, parents will continue to come back and we need to make sure children have appropriate legal links to their parents.
I appreciate my time is up. I will make two quick points. I am concerned about accelerating the process too much because it then becomes a tick-box exercise, but if it was in the courts it could be sped up and we could have appropriate review through the courts or whatever. To be clear, while I talked about inter-country adoption, I appreciate surrogacy and adoption are not the same thing. There are parallels that can help us but we need to be clear we are not saying they are the same thing.
I will follow on from what Senator Seery Kearney and Deputy Costello said. This might seem like a stupid question, but is there a way of doing some of the best interest assessment before the child is born?
People are arguing that the assessment has to be done after a child is born but then, if we take the example of the seven days, must we then ask is that enough time? This is similar to what Deputy Costello was saying. I do not understand why we could not have a system with a pre-birth assessment. It could include bodily autonomy for the surrogate, which I feel strongly about. When the baby is born, parentage would transfer over. I can understand the sense of having some sort of built-in cooling off time.
If a legal guardian were to appointed, who would it be? We could be getting into a potentially messy situation in that regard. A parent might make a different decision than a legal guardian. If the child is very premature, there are many different things to consider. Is there a way of combining those elements around the best interests of the child and having doing some of the assessment beforehand? I acknowledge this could be a stupid question but does the baby have to physically be there before that kind of an assessment can be carried out or can some of it be done with a built-in clause that states if something goes wrong within ten, 20 or 30 days, parentage can be revoked or something like that? Legal certainty is obviously in the best interests of a child.
Going back to the birth certificate situation, I feel we are getting into strange territory if a number of people are named on a birth certificate. That is definitely going to have the effect of drawing a red circle around the name of the child and marking him or her out as different. Is there a way of having a register of that information that is very accessible and even from a younger age. People might not even have to be 18. Perhaps from the age of 16, people would be able to access all of their information but it does not have to be included on the birth certificate. I am thinking how complicated the situation is with regard to passports at the moment, as we all appreciate. I cannot imagine what it would be like if there are multiple people mentioned on a birth certificate. Such a child would be treated differently. He or she would be the subject of discrimination and would also face longer processes as a result. I appreciate our guests might not have answers to all those points. I am thinking out loud.
Ms Tanya Ward:
In considering the best interests of the child, I do not think a pre-birth assessment would suffice. An assessment would have to be done after birth. Some of the tests could be done in a pre-birth process but one of the key things the special rapporteur talked about was the need to ensure that no money changed hands in the transfer of the child and that no illicit practices took place. There are many things that could go wrong. We must provide a basis to ensure all of those things have been picked up to ensure X or Y have not happened.
I am sure certain cases have been discussed by the committee. There is an American case where a woman became pregnant with three children and the commissioning father wanted two children and not three. He wanted the third to be aborted during gestation. The woman did not want to do that. The necessity for bodily integrity protects against those kinds of things and the legislation is clear that it will be the woman's decision as to what happens in those kinds of circumstances. However, there are other things that can happen in between and a post-birth assessment is required to pick up on those.
Ms Julie Ahern:
Some assessment can be done in advance. Professor Conor O'Mahony would have set out to the committee how both pre-birth and post-birth assessments can be done together. However, as Ms Ward mentioned, there must be an element of post-birth best interest assessment to ensure, from the sale of children perspective, that it is all above board and no sale has taken place. That was well set out by the special rapporteur. Some of the assessment could be done pre birth, as Professor O'Mahony has suggested. There does, however, need to be an element of post-birth assessment. I do not think we can get away from that if we are looking at the situation from the point of view of the best interests of the child.
Is there a way of having the intending parents as the legal parents subject to a certain number of days, just so legal certainty is provided? Perhaps I am wrong but it sounds to me as if the suggestion of a legal guardian would involve somebody else who is totally unrelated to the situation for the seven days. That is not a good situation either.
Ms Tanya Ward:
A social worker could step in as the legal guardian for the in-between phase. For some children in the care system, Tusla is the corporate parent. There are not a considerable number of children conceived in this way so a social worker who is a specialist in the field could step in during the interim period while this process is happening.
That is another of the challenges. If a social worker in Ireland were to be appointed, would he or she have the required legal standing? That is something that is on our side of the table. I am just in my head about guardians ad litem; I am sorry.
I am going to refer to the Health (Assisted Human Reproduction) Bill and the fact that it only covers domestic surrogacies and not international ones. That Bill is going through the system. Have our guests any comments as to how they would feel if the Bill goes through without recognising international surrogacy?
Ms Tanya Ward:
The challenge is that children are still going to be born facing the same legal uncertainties. Parents will have the same difficulties. People might still arrive with a child to whom the intending parents are not linked genetically. Discrimination between the two groups of children who have been conceived is another issue, including with regard to their genetic heritage and its protection.
Ms Julie Ahern:
The United Nations Convention on the Rights of the Child is clear on that. Children should not be discriminated against based on the method of their birth. Not regulating for international surrogacy could be argued as de factodiscrimination against children who are born internationally and not domestically. It would be in the best interests of children that we have a regulatory system. The UN special rapporteur and all the UN bodies are quite clear that we need to regulate for international and national surrogacy. Leaving one out can create big difficulties for children and particularly for the implementation of their rights.
It would be remiss of me not to point that in the 2019 report, the second report by the former special rapporteur, she notes that she identified three main responses to her conclusions in the 2018 report. Several states and civil society organisations rejected the premise of sale outright in the context of surrogacy, arguing that at no point is there a transaction for the child. A substantial number of stakeholders expressed concern about the conflation of sale with surrogacy, which could lead to a criminalisation of surrogates and intending parents, as well as the possible violations of the right to sexual and reproductive health. The report also stated that a number of states and civil society organisations argued for the outright ban on surrogacy, without exception. I note that the former special rapporteur acknowledged there was discomfort with the idea of putting sale into surrogacy when people do not enter the vast majority of surrogacy arrangements with the intention of buying a child. That is not to say there are not outliers because there certainly are.
The people who are being left out of this conversation are the intending parents. We are talking about the surrogates and the children but we are not talking about intending parents who in good faith are on a fertility journey to express their inherent desire to have a child. They do not have a right to a child but they have a right to go on that journey and explore it as a possibility. That is important.
Another thing we are not saying this morning is that in an international setting where the intending parents are included on the birth certificate, those parents have the same right to make decisions around their child because they are the recognised parents from birth in that country. A little bit of what we are talking about is slightly idealistic because there is no lacuna as long as the child stays in the country in which he or she is born. The lacuna happens the minute the child steps on a plane and comes to Ireland. The idea of an interim guardianship order would cover that issue.
It should then be judicially reviewed in the context of parental order in Ireland, which would be a very important measure.
We have not touched on retrospective. We cannot put in place a system that first discriminates against countries where the intended parents are on the birth certificate. From a retrospective point of view, I propose we need a bespoke solution that sets aside all the rules, guidelines and frameworks we will put in place, and sets out a set of circumstances in which people underwent a legal route in other countries. We have a situation whereby children are being discriminated against and that needs to be addressed urgently with a bespoke solution in Ireland.
Ms Julie Ahern:
We are very clear that we need to look at the retrospective piece and that legislating now, while forgetting what happened previously, is very problematic in the context of the child's right to identify. In order for children to be able to access their identify rights at a later age, they need to have the same protections, including the right to identity, that child who will be born after this legislation comes into force will have. We need to ensure that children's identities are protected and to consider their best interest in the right not to be discriminated against. Forgetting about the retrospective piece in this legislation is a big gap. It was a point well made by Professor Conor O'Mahony, in that we already did that with the Children and Family Relationships Act. There is a small retrospective piece within that legislation but it does not cover everyone. It is worth looking at that example and learning from it so that we can ensure that children can have their rights vindicated, particularly the right to identity and not to be discriminated against based on timing.
We have had a number of meetings to date, and it is important to say that there are a lot of solutions. I refer to the Children and Family Relationships Act. We have a tendency in this country, when faced with something complex, not to talk or do anything about it, and that is the wrong approach. We have failed the children who have already been born through surrogacy. Hopefully when we produce our report, it will be acted on quickly, which is something that does not happen often in this House but we all have a responsibility to push for that. It was said earlier that there is a serious responsibility on us as legislators and I have always thought that. We do not have the luxury of having a position. We have to take on the responsibility that was given us when we came to Leinster House and that is to legislate. It is great, in a way, that all the children's rights organisations are on the same page in that it needs to be done and that it should have been done a long time ago. I thank the witnesses for their time.
I agree; the status quois not acceptable on any level. It is an issue that needs to be addressed. I thank both witnesses for giving us their expertise and thoughts. We will suspend the meeting to allow our next witnesses come in.
I welcome everyone to our second session, in which we will resume consideration of protecting the right of the child to his or her history and identity, including his or her genetic, gestational and social origins, and ensuring that existing children born through international surrogacy arrangements can exercise their right to their history and identity, including their genetic, gestational and social origins. On behalf of the committee, I welcome Ms Georgina Roberts, Ms Rachel Rowley Smith and Ms Meredith Baldwin and little Max. We will be quiet so that we do not interrupt his snooze.
Before we begin, I am required to repeat the note on privilege and housekeeping matters. All 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 might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory relating to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. There are some limitations to parliamentary privilege for witnesses attending remotely from outside the Leinster House campus and as such, they may not benefit from the same level of immunity from legal proceedings as witnesses physically present do.
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 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 in order 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 Microsoft Teams to confirm that he or she is on the grounds of the Leinster House campus prior to making his or her contribution to the meeting. I remind those present to wear masks throughout the meeting and that they should only be removed when speaking. I call on Ms Roberts to make her opening statement.
Ms Georgina Roberts:
My name is Georgina and I am 24 years old. I was born through altruistic traditional surrogacy in England in 1998, organised through a not-for-profit agency called Childlessness Overcome Through Surrogacy, COTS. My parents tried for children for many years and completed five rounds of IVF with their own gametes and some with donor eggs, none of which was successful. They then joined COTS and their profile was sent to surrogates, who were registered with the agency, and they were selected by Suzanne, my surrogate. Suzanne had one son of her own, aged four years at the time, and had also completed one surrogacy journey for a family in the north of England. I was conceived with ease and my parents were involved throughout the pregnancy. They formed immense trust with Suzanne and when I was born, I was taken home by my parents. My first birth certificate had Suzanne and my dad on it. After a parental order court process, I received a second birth certificate with my mother and father on it. This took over one year to issue, therefore, Suzanne was my legal mother for a whole year of my life.
I have known about my origins for as long as I can remember having been read stories such as my mummy's tummy is broken. I have never felt any sense of pain or grief as a result of being surrogacy born and I am confident in the role of my parents as mum and dad. I feel a sense of warmth that I was born in a situation of love, trust and altruism where one human being did a selfless act to change the life of another. I see my surrogacy family a few times a year and we are looking forward to getting together at my wedding next month.
Being born through surrogacy has its challenges though, and I would like to outline what I perceive these to be. First, the role of the parents is often undermined from birth. When I was born, I went to the neonatal unit and my surrogate and my dad were able to visit as my legal parents. After discussions with the hospital, my surrogate was able to transfer her visiting rights to my mother. However, this undermined my mother's role as my parent from the word go. I believe this damages intended parent's confidence, compounded by having often already been through heartache to achieve a pregnancy through surrogacy. This damage is not in the best interests of the intended parents, IPs, nor the child’s. I believe the IPs should be the legal parents from birth because the child was always intended to be theirs and this is in everybody's best interests. Surrogates do not want to be considered the mother and IPs want to be considered the parents, and this is also important for the child.
It is, however, important that the surrogacy is documented somehow. I believe there could be a way of documenting the surrogate’s involvement on the birth certificate, not as a "parent" but in another format. It should also be documented whether it was gestational or traditional surrogacy, and if any donors were involved. Individuals should always be allowed to see information about their surrogate and genetically related siblings.
Existing children born through surrogacy must have birth certificates issued that include their parents as their legal parents. This is imperative in the provision of emergency healthcare, child benefits and legal family security in cases such as bereavement.
I have been incredibly fortunate to have been afforded the right to know my parents and Suzanne, to whom I am biologically related. I am aware, however, that this is not always the case for individuals. Having the right to know and form a relationship with my surrogate, and half-brothers, and wider family, has brought me a sense of completeness. I have a good relationship with all of my surrogate family, which is something my parents have encouraged. Not having this is something that has been the cause of some significant hurt within other communities, such as with donor-conceived individuals, and I felt this when I presented alongside them at the United Nations.
In the surrogacy community, on the whole people are more open about a child's origins because the lack of pregnancy cannot be hidden from those around. The right to information about my surrogate and wider family has also been important in the provision of my healthcare, owing to some genetic conditions within the family, and is a basic human right. There should be a legal obligation for individuals to be made aware of their origins and have the right to access healthcare records in the same way as any other person could. There should be a centralised way of recording these surrogacy births to ensure that records are kept for future generations and access to information is possible if it is not passed on by family.
I believe that legalising domestic altruistic surrogacy is in the best interests of all parties. This avoids the added complexities with international surrogacy such as nationality and passports. Of course, surrogates should have all expenses covered and should never be out of pocket. That said, all individuals born of international and commercial surrogacy must still have their rights and their legal parenthood protected.
The language around surrogacy is important to me. From my networking, I know it is also important to surrogates and intended parents. The word "mother" should not be used to describe the surrogate in any sense. Words should be thought about carefully in the context of the construction of law, as words hold true power and meaning for everybody.
I thank members for listening. I would be very happy to answer any question or expand on my experiences of being a person born through surrogacy.
Ms Rachel Rowley-Smith:
I thank the committee for letting me speak to it and share my experiences, and, hopefully, answer any questions members may have. Members are all aware that I have a very young baby with me and his presence is acknowledged and accepted. I thank the committee and apologise in advance if he does interject in any way.
In 1987, I was born via traditional surrogacy. I was formally adopted by both parents in 1996. I have a birth mother, a mum and a dad, who is my biological father. Surrogacy in the 1980s in the UK was very new and therefore quite controversial, so the process was shrouded in secrecy. The Surrogacy Arrangements Act 1985 was rushed through parliament as a reaction to the Baby Cotton case. I was born only two years later, and, obviously, only conceived just over a year after the arrangements Act. So much so, I only discovered how I came in to this world three years ago. I am in touch with my birth mother, and my mum and dad have been very open with me since the discovery and have never hidden anything. They have always answered any questions they can. I am happy to go into further detail in regard to this late discovery if required.
I never really knew much about surrogacy. I had heard about it in the context of same-sex couples having a baby, but never really in the case of a heterosexual couple in the UK, and not at all for overseas. During my discovery, I learned that my mum, who raised me, could not have children of her own because she went through the menopause in her late 30s. After 25 years of trying, my parents were so desperate to have a family of their own they were willing to try anything. One night, my mum was watching TV and saw a segment on the Kim Cotton surrogacy story, which then helped her discover the amazing service of surrogacy and that her dreams were not dead. She contacted the agency, and my parents journey began. My view on surrogacy is that surrogate mothers, be it traditional or gestational, are incredible beings. Being that selfless to help bring life into the world to fulfil dreams is amazing. It is wonderful that there is another way to grow a family. The parents of a surrogate baby are incredible also, as their journey is not free from stress either. I fully support international surrogacy when domestic has not been an option, due to various reasons such as lack of accessible information, support or legislation. I believe that legislation is crucial to protect all parties involved for both domestic and international surrogacy, including the child born as a result of the process. There are may be potential parents out there with their mental health suffering, as they think their dreams are over, and who do not know that this option is open to them, and that they can have a family. It is important to note that surrogacy should only take place when all parties are consenting.
Establishing legal parenthood for those children already born through domestic and international surrogacy is critical. Due to a lack of this when I was born, it took six long years for my parents to adopt me. The stress was palpable on my parents and also on my birth mother as well. When this does not mean full legal parenthood, it is essential that this is addressed and that there is an easy way to understand the process and information. Support must be readily available to avoid any future complications. The lengths my parents went to in order to have a child outweigh the lengths involved in terms of how a lot of other children are brought into this world. I am so lucky to have been so wanted and born into such a safe and happy home with parents who loved me. I only wish that others were as lucky as me. Why should surrogacy be so scandalous? These children are so wanted that parents will go to such lengths to have them. How lucky am I? I have two parents who raised me, a birth mother, and four half-siblings.
Ms Meredith Baldwin:
This is my personal story and experience of being born through surrogacy. My parents, along with Kim Cotton, set up an organisation in England called Childlessness Overcome Through Surrogacy, COTS, shortly after surrogacy became legal in England in 1985. They were also involved in the change in the legislation which meant I could be born legally through surrogacy. COTS has facilitated more than 1,090 births via surrogacy to date. I was born as baby No. 11 for COTS via straight surrogacy. This means the insemination of my father's sperm directly into my birth mother and she then became pregnant and gave birth to me in 1989. Straight surrogacy is not as common as it was in the early days due to the huge advancements in fertility treatment. It is amazing that a child in England could be born with the involvement of a couple of the same or opposite sex who conceived with donor sperm, donor egg and a host mother.
My parents supported my birth mother throughout the pregnancy both financially and emotionally. They spent time with her and her family during her pregnancy and flew up to her from Kent to Durham in a hurry for my birth, as I arrived more than six weeks early of my due date. After giving birth, my birth mother handed me over to my parents in the hospital and they took me to my childhood home. After my birth, my parents did attempt two other separate journeys with two other surrogates and, before my birth, they had their first attempt but they were unsuccessful. Before exploring surrogacy, they had also tried to adopt, but this proved extremely difficult and they were not able to finish the process.
My parents and I have a continued bond and relationship with my birth mother and also her family, in particular, her three other children, my half-siblings who she conceived before me with her husband. Growing up and now, as an adult, I have never had any issues with discussing surrogacy and I feel very blessed to have an open relationship with my parents and birth mother. My father is one of the most wonderful people in my life and was the driving force behind my birth. I have always known that I am a surrogate baby, and I am very grateful that my parents told me when I was young. It was never an awkward, big sit-down conversation, it has always just been a part of my life story. It can take slightly longer for me to explain to people about how many siblings I have and my birth mother, but I have never had any negative comments towards me. Generally, surrogacy has gained a lot more popularity and awareness compared to the previous situation.
I have always been very clear in my mind that my parents, whom I will always call mum and dad, and birth mother, are very separate, but we all have a special bond and love for each other. Many people comment on how similar I am to my mother, but then I explain to them that it is simply not biologically possible.
Although I may not share the same stature, hair colour or height, I sound like her and have her mannerisms, because she was the person who brought me up with my father and they would never be anything but my mum and dad.
I am a businesswoman. I live by myself in London and am very much looking forward to starting my own family in the future. It is my want for my own children that has encouraged me to be more active in my support of surrogacy of late, and something I am committed to continuing with.
There is so much support and advice available from organisations such as COTS and legalisation has made it easier to avoid the pitfalls of private and-or backstreet journeys for people who are thinking about surrogacy, have already been through the journey or are currently going through it. While the legal process in England is not quick and simple or without its difficulties, I am living proof that it can be successful and I am forever grateful that that is the case. I believe that, because it is legal, people are more willing to speak about it openly and ensure that all parties involved in the creation of a surrogate baby are cared for and represented.
I thank the committee for the opportunity to share my story and for listening and reading. I am available for questions.
I thank the witnesses for being so open and prepared to speak. It is a courageous thing to share one's own story, particularly where we are trying to navigate a way through a legislative quagmire. Hearing from the witnesses about their experiences has been helpful.
The purpose of this committee is to discuss international surrogacy. In many instances, the surrogate mother does not live in the same country as the parents and child. A second difference to the situation of the three witnesses is that international surrogacy is much more likely to be gestational surrogacy as opposed to traditional surrogacy, in that the egg gamete will be that of the intending mother or a donor. I will bear this in mind as I ask my questions.
The experience of identity is something that would be useful for us to hear - the witnesses' experiences at school, how they describe themselves and how the latter has worked out. We are driven towards ensuring that there is disclosure for the child from the moment of birth. Ms Rowley-Smith has a different experience of that. Is there anything she would like to share on this matter?
The witnesses, in particular Ms Roberts, alluded to the issue of birth certificates. The witnesses have a commonality in having to ensure that their surrogate or birth mothers were somewhere reflected in their legal identify documents in light of the right to privacy. I would appreciate responses on this point.
The witnesses also spoke about the long process their parents went through to get their parental orders and the ambiguity and stresses involved. We are anxious to avoid that, so the witnesses might explore that issue.
Ms Rachel Rowley-Smith:
I will clarify my story, if the committee is happy for me to do so. I was born soon after Ms Kim Cotton's surrogacy story came out in the open. Therefore, the Act had to be rushed through, so surrogacy was still very new and no one knew what was going on. When I was born, the situation was very much up in the air. I do not believe that COTS was around at the time - I was probably just before it. I was born in Wales and raised in England. When I was brought home to England, the local council had never come across anything like it before and did not know what to do. Even though it took from 1987 to 1996 for me to be formally adopted - I was adopted by both parents, including by my father, who is my biological father - it was not because there was any restriction or people did not want it to happen. It was just that people did not know what to do. That, in itself, stresses how important legislation is. Eventually, after my situation had gone before courts here, there and everywhere, I was formally adopted in 1996.
Legislation is important. My parents were under stress. In the previous session, mention was briefly made of having what was almost a legal guardian for a cooling off period or whatever. I lived with my parents, but someone was assigned to me who, if need be, I could go to to be looked after. There was also stress on my birth mother. She had made this arrangement. She never saw it as a transaction and always saw it as helping people who could not have children. The courts repeatedly going back to her for all those years asking her whether she was sure about it was stressful. I cannot imagine the stress on all of the parties involved.
I was fortunate to have been so young that I had no clue about what was happening. I was oblivious to it. I only found out three years ago. I do not hold regrets. With the lack of information available, I do not blame anyone because I do not know what I would have done in my parents' situation. I cannot empathise, so I cannot comment. However, for future surrogacy, it is extremely important that a child know. I believe it was Ms Roberts who said that there was never a big sit-down for her. It was just what she had always known. I wish that had happened in my case, but I am not angry and do not hold grudges against anyone for the way my story came out.
Ms Georgina Roberts:
There were a few points in the Senator's questions and I wrote them down. If I look down, it is because I am looking at those.
One of the Senator's first questions was on identity. I have never struggled with my identity personally, within groups, at school or anything like that. Being aware that you were born through surrogacy is vital. Like Ms Baldwin, I look nothing like my mom. My mom is 5 ft nothing and fair, and has ginger hair and blue eyes. We could not be more different. If I had not been told, I would have been one of those people who wondered growing up and thought that surely we could not be genetically related. I never felt any difficulty, as I had been told about my surrogate. I had always known her, I had met her and I grew up alongside my half-siblings, visiting them a few times a year. It was always known.
As Ms Baldwin mentioned, the issue of surrogacy comes up with everyone because people ask how many brothers and sisters someone has. I class my half-brothers as my half-brothers because that is what they are and I did not grow up with any other sibling. For all intents and purposes, they are my half-brothers, and that is how I like to describe them. As such, we are always discussing surrogacy. I have never had a negative reaction, even from people from whom I had believed I might have.
In the university where I am studying, I have encountered many international students from cultures, communities, backgrounds and religions where surrogacy would not be thought of or necessarily accepted and would go against many barriers. However, when I sit and talk with people about my story, I have never had any negative comment at all. That is powerful, because when people hear my story, they realise what a selfless and amazing act it is for one person to do for another. We can confabulate it in a hypothetical setting and decide it is not acceptable, but when we look at a human born in this way and the amazing lives we have all been fortunate enough to have had, there is no arguing that it has worked for us. No one can argue with that experience.
Regarding birth certificates, it is important to respect privacy, but it is also important that it is documented. This is something I have discussed in many other places and we have never really come up with a solution which allows both. The best solution I have heard of is the suggestion of an online portal where information could be stored and there could be a link on every birth certificate which could state that more detailed information about any additional circumstances surrounding the birth can be found at the link. Some people who were born "normally" would go on the website and there would be nothing extra while people born through surrogacy, donor conception or other routes to parenthood would have additional information online. That would mean everybody has access to that information but, equally, it is not plastered over one's birth certificate that one was born through surrogacy, which clearly would not be ideal.
It is very important to me that my parents are listed as my parents. I believe it is in the best interests of everybody that this happens from the very start. In this country, the new legal framework is looking at a six-week cooling off period, which was mentioned in this discussion, as a period of time for the surrogate to put in any objections. If she did not object, then the intended parents would be considered the legal parents. That is probably a good solution to allow the surrogate time but also to give the automatic rights, based on the assumed journey, of the intended parents being the legal parents from birth and avoiding these lengthy processes of court adoptions, which take years and are not good for anybody.
That is all I have to say. Does Ms Baldwin have anything to add?
Ms Meredith Baldwin:
I do not have much to add. The ladies have summarised it well, and we share some similarities. As Ms Roberts said, I have written a couple of notes on identity. For me, the way that my parents and birth mum chose for me to be told at such a young age has helped me to accept it. It has just been part of who I am forever. In school and even up to my working life, I never had anybody make any negative comments. I have always been received very well. Generally people ask questions about it such as whether I see my surrogate mum, and I have always been open and happy to talk about it.
Regarding birth certificates, interestingly, I do not actually know the length of the period of time of the legal adoption process so I will have to check that with my parents. I have never asked them that question. I am assuming it must have been fairly quick because they have never mentioned it. I must have been very young when it went through. As Ms Roberts said, having one's parents on one's birth certificate is very important, but it would be insensitive, perhaps, to not have it mentioned somewhere, whether that is on a portal or on an added part of the birth certificate, whether one comes into the world through surrogacy or adoption or anything other than the norm. It is important to have that documented, for sure.
I thank our guests for taking the time to appear before the committee and for sharing their stories with us. They have spoken very positively about their experience growing up as a child of surrogacy while also voicing challenges associated with it. I am glad that the experiences were very positive for them.
I know many others would have serious issues with identity following donor conception. Are they familiar with a lady called Sarah Dingle? She is an Australian woman who is donor-conceived. She addressed the UN in 2019 regarding surrogacy. She basically said that there is no right to have a child under international law and that children are not goods or services that any state or business can provide. Ms Dingle along with other persons born via surrogacy have spoken about the commodification, being conceived to meet the needs of others, half their identity being missing and the exploitation of gamete donors and women who act as surrogates. They spoke of decades of profiteering in a global trade of sperm, eggs, embryos and wombs. If our guests could say something to those women and men, what would it be? Do they think we should be hearing from a range of different voices and experiences with surrogacy in this committee?
Ms Georgina Roberts:
I am happy to answer that. I am aware of Sarah Dingle. I spoke alongside Sarah and a variety of other donor-conceived individuals at the United Nations. From a personal perspective, I found that experience eye-opening. I was the only person on that panel born through surrogacy, and I want to make that clear. I believe that donor conception and surrogacy have very different issues and, while they are closely related, we cannot treat them as the same thing. They simply are not. Granted, some surrogate-born children are conceived through donors but, on the whole, surrogacy is a separate entity.
My eyes were opened in this event in the United Nations by the stories of those who spoke alongside me who were donor-conceived because I had never really spoken to people who had had such difficulties with their origins. It really broadened my experiences of interacting with different people who had had a very different experience from the experience we all have had. It was very clear in that interaction that they feel intense hurt and pain, and sometimes betrayal, from the way they have been conceived. At no point does any of us wish to undermine their feelings about that, but that is not necessarily reflective of how people feel in surrogacy. As I said earlier, surrogacy generally is much more open and many of the issues I came across within that community speaking at the United Nations were about not having access to information, not being told about their origins, not being able to get in touch with birth parents should they wish to and feeling commodified because of the way sperm donation was done in various countries. Again, it was not in the UK, so we have to bear in mind that these were different countries with different rules.
In terms of profiteering, I do not feel that surrogacy is about profiteering. Clearly, altruistic and commercial surrogacy have different issues, but international surrogacy can still be altruistic. There is no profiteering in altruistic agreements because it is a woman somewhere on the planet wanting to help build another family. What is allowed in the UK law is reasonable expenses. It is absolutely right that surrogates should be supported and provided with reasonable expenses and should not bear any costs in the pregnancy. They should be looked after by all parties. Personally, I do not perceive that as profiteering. We have to take some of the comments from the United Nations talks that were publicised and look at them in detail. All I can say about the comments that were made and publicised with donor-conceived and surrogacy people is that the panel consisted of ten to 15 donor-conceived individuals who had very difficult experiences and me born through surrogacy. I am not saying our experiences represent those of everybody, but that the comments that were made there do not necessarily represent surrogacy. They mainly represent the views of those donor-conceived and I happened to be there and, therefore, they were put in the media as donor-conceived and surrogacy. I want to put that out.
Perhaps Ms Rowley-Smith and Ms Baldwin want to come in on that. With regard to the voices on the committee, we have worked together to ensure that we have a wide range of voices incorporated, and they are discussions and decisions of the committee. I would not expect the witnesses to have any comments on that. However, given the comments on Sarah Dingle, that aspect would be interesting.
Ms Meredith Baldwin:
I will add to what Ms Roberts has already said so very eloquently, as always, that surrogacy is not meant to be for profit, and certainly not through COTS the organisation that facilitated my birth. If any surrogate mother or any surrogate says "I am doing this for the money", nobody would want to be involved with that. For me, that would be pretty unethical. It is about wanting to help a couple who have been struggling to have children. That is why surrogates want to do it. They probably enjoy pregnancy. It is a very selfless act. As for it being a profitable thing, that was not meant to be the case, and I do not believe it should be at all.
Ms Rachel Rowley-Smith:
I echo what Ms Roberts and Ms Baldwin have said. My birth mother said it was never for profit. I have never felt like a commodity or something materialistic. I have four half-siblings. She loves her family so much the thought of somebody out there who desperately wants a child and cannot have a child broke her heart. If she could let somebody experience that love of a family she said that she would have happily done it again. It has never been for profit.
I also agree with what Ms Roberts said about donor versus surrogacy. They must be compared as two very different things. The only thing that is slightly different for me is the question of identity. I may be the opposite to Ms Roberts and Ms Baldwin in that I look like my mum. I definitely look like my dad but the only thing that was in the papers was the fact that my mum was 50 when I was born. When I did find out three years ago it was a bit like "Whoa". It was mind blowing. Because I look so much like my mum I never had a clue. I would never say that there was any damage. There was a bit of confusion briefly but in the three years since it happened I am completely happy with my identity, with who I am and where I fit into this world.
While I have the floor I will make a point on birth certificates. My birth mother's name is on my birth certificate. This is something that does hurt me. That is the one thing. I completely agree that it should be my parents because they have earned the title of mum and dad. They have raised me. They are my parents. This is not to dismiss my birth mother at all, but they are my parents and they should be on my birth certificate. I agree that there should be some sort of link or database for complete legal or medical reasons. This is not to dismiss the selfless act that this birth mother has done but she is not my mother. I feel that this is very important to mention.
I had to attend something else and missed some of the earlier presentations. I apologise if I repeat questions. One of the things we have been talking about is the birth certificates and how we record these. I apologise again if I am repeating questions. What are some of the witnesses' experiences on that and being on the receiving end of these arrangements? Ms Rowley-Smith has spoken on that and I would love to hear from the other two witnesses also about their experience. How do they believe it could have been handled better or what would be the perfect system for somebody who has lived through such an experience? I apologise if that sounds awful. I will rephrase that. For somebody who has been born through surrogacy, what would be the best system for you guys?
Ms Georgina Roberts:
I am very happy to take that question. I have done quite a lot of networking among different groups around trying to create law reform on surrogacy in England and Wales. One of the ideas, which I mentioned earlier but I am happy to go into more detail about, was an idea from someone who was going to conceive, who suggested that we record these births in an online database and then put onto every single birth certificate a link to the database or website. A person could input a code from the birth certificate to see any additional information about his or her birth. For some individuals, they would input the code from their birth certificate and there would be nothing because their mum and dad on the birth certificate are their mum and dad biologically in every way, and that would be fine. For some individuals, whether they are conceived people or surrogacy-born people, there would be additional information on the website that would indicate who the surrogate was, whether they have half-siblings, whether donors were used, and that type of information. This would, therefore, protect privacy because the information that the person was born through surrogacy would not be plastered all over the birth certificate, and it would also mean that everybody would have access to the information needed, which would be recorded in a very safe place so it could not get lost or go missing.
On the processing of birth certificates, Ms Rowley-Smith and I spoke a little bit in our opening statements about the fact that the process is very long to obtain birth certificates, and for the adoption processes. One of the things the England and Wales law reform commission is considering is a six-week period after the birth where the intended parents are automatically considered the legal parents, before the birth certificate is issued, so that if there are any medical problems or any legal problems such as claiming child benefits, or whatever, they would be considered legal parents. That six-week period, during which the birth could not be registered, would allow time for the surrogate to object if she wanted to. If there was no objection, then the legal parents would be the intended parents, and that would be fine. If the surrogate wanted to object then she would have the time and space in which to do so. The thought is that it will go to a court to decide a best interest discussion for that child, on an individual setting.
In surrogacy we can all sometimes worry about these things. Generally, people involved in surrogacy are really secure, know what they want, and know what they are doing. These issues do not happen as the media tends to make out they do. COTS has had so many births and there have not been many problems really at all. We need to bear in mind that we are talking about a minute number of cases where there might be difficulties. In the vast majority of cases, there is no problem.
Ms Rachel Rowley-Smith:
I echo what Ms Roberts has said. It is extremely important that the parents who are raising the child are on the birth certificate, but that we do not dismiss the birth mother because, after all, she has done something incredible for these families. It needs to be on some sort of a database to avoid any kind of discrimination or raised eyebrows from people who do not understand the full situation.
I agree with the idea of a time period but once it is passed then that is that. While those six weeks might be quite intimidating and the parents might wonder "What if this goes bad?", it is better than the seven, eight and nine years that my parents had to go through. I am sure they would rather wait six weeks than all of those years and just get it sorted.
We need to make sure, however, that we do not dismiss the birth mother. That information needs to be on some sort of system where it can be easily accessed by the parties who need to access it.
I thank Ms Rowley-Smith for that. It overlaps with some of the things we talked about this morning, such as interim orders and the idea that a presumption to be rebutted might be safer protection. What Ms Rowley-Smith has said has give us a lot of food for thought.
Would Ms Baldwin like to try to come in again and see whether we can get her microphone working? Does she want to take out her headset, perhaps? We will come back to her to see if we can resolve that. We will move on to Deputy Funchion.
I thank the three witnesses for being here and sharing their stories. Ms Roberts stated that in the vast majority of cases, everything is 100% fine but that there tends to be a kind of frenzy about this. That is not to dismiss some of the cases which may not have gone 100%, but still that is a really important point to bear in mind.
I wish to ask about birth certificates. This matter has been covered somewhat, but I want to hear what the witnesses think of this suggestion. What they are saying is that there would be some sort of register or record where people could check that information but that the intending parents would be the ones listed on the birth certificate.
Ms Roberts's statement on language was really interesting. She said that the language around surrogacy is important and that, having discussed it with other people, she believes it is important to them too. I have got feedback from some people who have been surrogates. I know everyone is different, but they do not like to be referred to as mothers. With a lot of surrogacy now, at least one of the intending parents is one of the genetic parents. Could the witnesses expand on the point about language?
Again, I sincerely thank the witnesses. It is great to hear their evidence. It just goes to show that openness and transparency are the key to so much of this. Obviously, we need legislation. What Ms Rowley-Smith said shows that people did not know what to do or how to deal with the situation and that if there were regulations and legislation, it would be so much easier. The fact that it is an open system and people are talking about it are key to this as well. I ask Ms Roberts to respond to my question about the language. Then, if anyone has any further comment on birth certificates, I would be interested to hear it, but I know the question has been answered in detail already.
Ms Rachel Rowley-Smith:
If I may make a quick comment on language, everybody is very different. Personally, and from other people to whom I have spoken, my birth mother is my birth mother because she is maternally linked to me and gave birth to me. My mum and dad, however, are my mum and dad because, to me, the titles "mum" and "dad" are earned. One can technically become a parent. In many cases, it is quite easy to become a parent, but that does not automatically mean one earns the titles "mum" and "dad". Some people say to me, "Oh, you have two mums." I say I do not, and I am happy to correct them because education is key and many people do not ask questions because they are scared of offending somebody. I am not offended. I want to educate people. I say, "No, she is my birth mother, but they are my mum and dad." I would never be offended. We need to talk about this, as we are all doing, to educate people. Language is important, whether in gender or surrogacy, and we need to educate people.
Ms Georgina Roberts:
That is really interesting. I made my statement prior to those of the other two witnesses. I notice that both of them refer to their surrogates as their birth mothers, so I do not want to offend either of them in my comments on language. From my experience of working with all these groups, the overwhelming feedback I have had from surrogates is that they do not want to be considered mothers. They are not mothers in any sense from their perspective. They do not want that, I suspect, for two reasons: first, to protect themselves a little, because if they are referred to from the beginning as mothers, that forms a link and makes things potentially more difficult; and, second, they want to respect the intended mother as the mum and would not want to overstep that mark in making her feel like she has competition for the title of mother. That is why language is really important. I always refer to my surrogate as my surrogate or Suzanne. I would not refer to her as my mother in any sense because she is not. That needs to be reflected in law as well as in the education of people. I have been asked the question Ms Rowley-Smithy mentioned, "Who is your real mum?" You think to yourself, I have only one real mum, only one mum. I have my mum and my surrogate. They are very different people and I love them both for different reasons, but my surrogate is never my mum.
I know we have mentioned birth certificates in forward-facing terms but I am aware that in Ireland there is also a backward-facing problem of people who have already been born through surrogacy, who have birth certificates and who have their surrogates and possibly their surrogates' husbands or their fathers on those certificates, depending on the circumstances. We must not forget this group of people. It is great looking forward to creating laws to help in the future, but people who have been born have an absolute right to have their parents listed on their birth certificates as their legal parents and to have all that put into place in such a way that they are socially and legally secure in their family structures. We need to think of how that can be catered for in a bespoke way, making sure they are also thought of and their journeys are recorded so their futures are as stable and secure as our futures.
Ms Meredith Baldwin:
Sorry. I am a bit of a dinosaur when it comes to technology.
To add to what Ms Roberts and Ms Rowley-Smith said, I do not consider Wendy my mum. I might call her my birth mum but never mum. That is just not fathomable to me at all. My parents are the ones who brought me up. They are mum and dad. Identity-wise, the other ladies have already covered most of this. It probably comes down to it being good to have a general idea as to what language is appropriate, but that has to be decided for each individual between the parents and the surrogate. Especially among younger children, the phrase "tummy mummy" goes around a lot. It is a matter of making sure that it makes sense for people at the right time, especially for the child.
I thank the three witnesses for coming here to talk to us. It is really valuable to us because they are sharing their lived experience. We have been given the job of coming up with a report and recommendations on international surrogacy in quite a tight timeframe. It is possible for us to achieve that only if we hear from everybody involved. It is really brave of the witnesses to share very personal details of their lives, and I thank them for doing so because it enriches our experience as a committee and will enrich our legislative journey in respect of this matter. I thank them for that.
Last week, we had before us a psychologist who spoke about the really positive outcomes for children where families have been very open about surrogacy. I am struck by how different all the witnesses' stories are as to how they came to know they were born through surrogacy. What the lady before us last week said was about the importance of support for children born through surrogacy as they accept that. I know that the witnesses are all coming from different stages of that in the context of their childhoods.
I am interested in hearing their opinions about how we as a State should be providing counselling or whatever support they think could be beneficial in an optional way to ensure everybody is comfortable with it. I have been really reassured by all our their contributions around how certain they are in their identities and how positive an experience they have had from this.
Our guests might forgive me. I think it was Ms Baldwin, though I am not entirely sure, who said how wanted children were as well and that struck me too.
One thing Ms Roberts said in her latest contribution is surrogates do not want to be considered a mother and that is quite an important thing for us to delve a little deeper into. She also spoke about two potential solutions floated to the birth certificate issue that we are talking about every week. The first related to the database and secondly that six-week period. She reference the idea originally came from someone else but I would appreciate it if she had a little more information to talk us through that further, so we could identify whether that might be a potential solution for us in Ireland. I am asking the three guests to share their opinions on what optional support should be put in place for families and children in particular, and then for Ms Roberts to take the specific question around the databases and the six-week period.
Ms Meredith Baldwin:
As I was born with the support of COTS, which is, like I said, an organisation in England set up to provide this kind of bonding between intended parents and the surrogate, there is a massive network of support there. Although COTS is not a huge organisation, support is always available. From my childhood, when I was quite a bit younger, we would go to the AGM of COTS and I was able to mix with children born through surrogacy. Two of my best friends are surrogates; they are twins. They are actually Kim Cotton's twins. They have been in my life forever, so I have always had people close to me who I have been able to talk to about my journey and about their journey. That has continued to now. They now live on the other side of the world in New Zealand, unfortunately, but that support network is always there. That is why it is important to have the right channels to go through so one does not feel like one is going it alone, whether that is from the child's perspective, the surrogate's perspective or that of the intended parents, there is a whole load of support out there. It is not just through COTS but that has been my experience with it. It has provided so much support. Even now in my 30s I still like to talk about it. I still have questions. I think I always will. I have been very lucky in that respect that there has been something available for me throughout my life.
Ms Rachel Rowley-Smith:
Yes. Obviously my experience from knowing my background was very different to Ms Roberts and Ms Baldwin. As I said, I went through probably a period of confusion and there are children out there who still do not know and who should be able to access support through some sort of surrogacy legislation. I undertook some counselling to help me understand and fathom everything and it was fantastic. That course of counselling has helped me understand maybe how I got into this situation without knowing, obviously because of the lack of support back then.
I know funding is difficult but it would be worthwhile having an option of surrogate mothers who are going to undertake the journey to have some sort of access to counselling should they feel they need it just to ensure they are 100% sure and know what they are undertaking, just as one would with any other procedure. It is a bit off-tangent but my husband had a vasectomy and he was told to go away, offered counselling and told to ensure he was 100% sure this was what he wanted. That should be available when it comes to anything related to building a family. Making sure there are clear channels to access support is something I have not had and my parents did not have at the time I was being conceived because everything was so new. I say that but I think surrogacy has probably been around for a lot longer than we reckon but it has never been spoken. It is probably hundreds and hundreds of years but it is just that we do not know about it. It only started really being spoken about in the 1980s due to the courage of Kim Cotton. We have a lot be thankful to her for. As long as people know how to access help, should they want it, it is extremely important for every party involved.
Ms Georgina Roberts:
Hi everyone. I thank both Ms Baldwin and Ms Rowley-Smith for their comments. I fully back them. It is interesting to hear different experiences because Ms Rowley-Smith did not know and Ms Baldwin did and had lots of people around her who were born through surrogacy.
I had a slightly different experience in that I knew from very early on but did not know anyone else, other than my half-brother, who was born through surrogacy. I also recall attending the AGMs with all my surrogate family so I suppose I did not mix with the other children so much because it was a time for me to mix with my half-siblings. I would like to reassure everyone in the room that when people are told from an early age about being born through surrogacy we do not need counselling because of that, because we are just told and it is normalised.
I absolutely take Ms Rowley-Smith's point that counselling was really important for her because she had a different experience, but just to reassure people that when one has an experience where it is normalised from the beginning and one knows from day 1 then one does not need counselling because of that. It is just like being told one has a brother or sister. It is just one's family and that is just how it is and that does not damage anybody.
Ms Georgina Roberts:
That is alright.
On how we ensure these children have the support should they need it and how we ensure they are secure in that, my biggest comment is the best way to make children secure in their identity as surrogate-born people is to make their parents secure in their identity as parents. The biggest influence on children's lives is their parents. If one has parents who are not secure in their role as parents that is potentially where one gets difficulties but if we can maximise the security for parents, that they are parents like every other parent is a parent, then they are secure and they will have secure children.
On my idea on birth certificates, I have done a little mock-up. I hope no-one minds me holding it up to the camera. I am not sure people can see it. If it were a birth certificate one would have one's birth certificate, one's mother and father would be one's intended parents - mother and father as we have all described the mum and dad. Then one could have something at the bottom, like a bit of text, that says "For further information go to" and then supplies a website. On the back one could have a code. That code would be unique to each individual. One would go to the website and put in one's unique code. This method would ensure if people had to photocopy their birth certificate, for example, for anybody the front would be photocopied. Nobody else would have access to one's code or be able to use that code to go onto the website but with the hard copy would be able to turn it over and see one's code and input it on the website. It does not show there is something different about one because we want to protect privacy but it gives everybody the opportunity to use that and look at it. Somebody could go to the website, use his or her code that is protected and then access further information. I hope that is useful. Someone who was donor-conceived thought that might be useful as a system.
I thank the Chair. Everyone is so welcome. This morning's meeting has been so positive and we do not often say that so I am grateful for all our guests' very positive contributions.
An awful lot of stuff I was looking at has been covered. Birth certificates were mentioned and Ms Roberts has clearly illustrated that. What struck me from her contribution was the undermining of the parents.
That urges me on but it also upsets me that parents are undermined. And it is clear that parents are undermined by Irish law.
I have been going from different committees to this one so I do not know if this was covered. Identity is a huge concept including cultural, familial and genetic varieties. My identity is very much about where I came from and the family I grew up with but there could be a different genetic identity. Can someone explain to a layperson how we can understand the genetic identity particularly from a donor or gestational surrogacy? How do we reconcile genetic identity and protect it? It is not even about protecting it but for people to understand it. There are lots of reasons genetics are important. Ms Baldwin spoke of how straight surrogacy is not as common now. Does she think that is positive or negative? I am not sure what is the difference but how does having siblings or half-siblings impact people on an emotional level? You have half-siblings from people who are not your parents at all - you do not recognise them and nor should you - but you still have a genetic link to people to whom you are not technically related. What is our guests' opinion from a legal or emotional side?
Ms Meredith Baldwin:
On whether the more old fashioned straight surrogacy is good or bad, I do not think either of those terms apply. My mum is still my mum, whether I was created with her egg or not does not really make any difference. Yes, the technology has advanced but as to whether it would make any difference to me personally or would I feel closer to her if we shared genetics, I do not think so. To me, the parents are the people who bring you up. It is wonderful for those who think that their child needs to be genetically made from them; that is what they need but not everyone needs that and then what if it is not available? That would not have worked for my mum anyway because she had a lot of complications so straight surrogacy was the only way for her. Her eggs were not not viable and she could not carry. For me, I do not think it would make any difference.
On half-siblings, I have a very good relationship with my half-brother but not so much my half-sisters because they lead quite a different lifestyle from me. I do find it odd sometimes. We see each other at weddings or big events. I watch things they post on Facebook. There are a few pictures taken of my older half-sister from the side and I think "oh yes, that looks a bit like me". That is a bit of an odd feeling but I feel as though I know them as much as I need to know them and I am lucky that I am able to have that. As I said at the beginning, it is just part of my life story. I do not particularly feel the need to change anything. I do not think that I need to have more or less involvement with my birth mum or my half-siblings. I am lucky that I am very happy with what I have got.
Ms Rachel Rowley-Smith:
I would echo what Ms Baldwin said. I am biologically linked to my half-siblings through my birth mother. I find it quite funny in a way is that I grew up as an only child so if I mention "my brother" to someone, to me it sounds like I am lying. It is something that I have never usually said. If I do refer to them I am happy to talk about and share the experiences. If anything the fact that I am not biologically related to my mum has made me closer to my mum. I do not think there is that need for a biological connection. It is what Ms Baldwin said basically.
Ms Georgina Roberts:
I am also related to my half-siblings. They are the three other children that my surrogate has had. One is also a surrogate baby for a different family. That is for context. I see all of them as my half-siblings. I have always been very comfortable using that as a language to describe them. They are my half-brothers and they call me their half-sister. We need to think of how in most families now it is not just mum, dad and children. Families are constructed in so many ways. We are talking here about a specific way to construct families where half-siblings are more likely to have happened but let us not forget that half-siblings, step-siblings and adopted siblings happen in all families. This is not a problem unique to surrogacy and this is not something that we need to overly worry about. Surrogate families will come up with their own language. I have met some families where they do not describe each other as half-siblings but call each other cousins or special friends and that is fine. So long as the openness is there the language is very much as people want to have it. I have always got on quite well with my half-brothers. We speak and we see each other a few times a year. I feel quite privileged to have them and particularly my half-brother who was born through surrogacy because he has been the only person I have known growing up born through surrogacy. I have been able to share experiences with him and talk with him about surrogacy a little bit. It ought to be helpful because it is in the same family so we have had near-enough identical experiences with the openness and the surrogate so we have been able to speak very openly about those things. So emotionally or legally I have never found having half-siblings problematic at all.
On traditional or gestational surrogacy, I might have a bit of a different view from the other two guests. My views on surrogacy come from a place where my mum's role as my mum was undermined. I think she finds that very difficult and therefore I find that very difficult as well. I feel quite defensive that her role as my mum was undermined from very early on because that is not right. Whether we have children, like Ms Rowley-Smith had with Max or whether we think about going on to have children, we all assume that we are going to have children who look like us and who share things like mannerisms with us and that we will be pregnant. For intending mothers it is very difficult because you already have to let go of so much in not carrying a child that it is good to preserve as many of the other things that we all think about having with our child as we can. If I could have been genetically related to my mum that would have been nice and to be able to say I look like her and we share genetics but I am not and I do not feel any pain about that. I think, as technology advances, it is in the best interests that if they can be genetically related to both parents then they are. Mine is just one voice in this.
I do not think it does anyone any damage if it is a case like Ms Baldwin mentioned where mothers cannot be genetic mothers because their eggs are not viable. I think that covers all the questions.
I was not asking if one would feel better if genetically linked to one's mother but more about having another party involved if one was conceived by donor egg. I apologise as I did not explain that properly.
Having listened to our guests, their experiences have been improved and added to from having half-siblings. They have had a positive experience. Mine was a probing question on that. It was not to suggest one should have a genetic link to one's mother it was about having another party involved and our guests' opinion of that experience. They have had such a positive experience of all of this. My question was about the adding in of another factor. My apologies again on that.
Ms Georgina Roberts:
I do not think it would have made any difference if it was a donor egg-conceived birth, to be honest. I think we are all secure in our identities in our role as being surrogacy born. If it was birth conceived from a donor egg, a surrogate's egg or our mother's egg, it would not really matter as long as it was recorded somewhere.
Ms Meredith Baldwin:
I totally agree with Ms Roberts. It would not make any difference. It would be perhaps another person but, as I said in my opening statement, we are at the stage where one can have a child that is going home to a same-sex or opposite-sex couple conceived from a donor sperm or a donor egg and a host mother. The possibilities are pretty endless. As Ms Roberts said, if one has the physical ability to use some of one's genetics, it would be natural to want to do that, but if one cannot, one cannot. It is black or white; one either can or one cannot. If one still wants to go down the road of having a family, then one explores other possibilities. I do not think it would make any difference if I found out tomorrow that I had an egg donation mum. Perhaps it would be different, but I do not think so. The important aspect is having openness and knowing about it. Things tend to fail when people are not open, try to hide things and it becomes a secret.
We are coming to the end of our meeting. I have a question regarding language. Since becoming a member of this committee, it has been a major learning exercise for myself and probably for the majority of the members. When it comes to language, I am nervous about saying something that could hurt even if completely unintentionally. Because we do not have the lived experience we do not know what certain words mean or the emphasis they have for our guests. They discussed the word "mother" earlier and how the language around that is important. Is there any other language they find hurtful or would like some clarity around? There is an element of public education in having them here today in order that people would have an understanding of surrogacy. Is there any other language they find particularly concerning, hurtful or discriminatory in its approach that they would like to tell us about?
Ms Rachel Rowley-Smith:
I cannot think of anything. We covered most things but something has just cropped up for me. During the process of being adopted and all that malarkey my surrogate mother’s husband was referred to as my stepdad. When I found out he was referred to as that by the courts I found it hard to understand why he was referred to as my stepdad and wondered if he had anything to say on it. I would never have referred to him as my stepdad. All parties who are potentially involved can be affected, even if it be half-siblings, but I do not think stepdad was the right word. That is more of an anecdotal comment in case that ever comes up. From the reactions of Ms Baldwin and Ms Roberts, I guess this is something they have not come across. I was stunned when I heard about it. It is an anecdotal comment to point out that I did not see him in that role.
Ms Meredith Baldwin:
One needs to take it on an individual case basis and to speak to the parents, the surrogate and the child to find out what is comfortable for them and if one is not sure, one should just ask. I do not know many surrogate children but I know a few. I do not think any of us would be offended if you used a term and we had to say we would prefer it if you called them this. We are all about educating, sharing and making sure everyone has a good experience.
Ms Georgina Roberts:
It is very natural to be nervous of language in this scenario when it is something of which one does not have lived experience. It is great people want to hear from people who do have lived experience of what language might be difficult. I do not have much to add in terms of what might be difficult. In my case my surrogate was unmarried and my first birth certificate had the names of her and my father recorded on it. However, I know where Rachel is coming from on this point. In this country currently if one's surrogate is married, it is the names of one's surrogate and her husband that are recorded on the birth certificate because it is presumed parent law. That is probably where the comment of stepdad came from, but I am not sure where they got the step part from.
In terms of language, as a child, I also used the term "tum mum". It is a useful phrase in order that children can understand. However, I have made a personal decision now not to use the term "mother" when referring to my surrogate because that does not feel right for me but people have different views on that and that is fine.
In terms of language going forward, one aspect I think about, and Ms Rowley-Smith may have experience of this with Max, is that we are the first generation of surrogacy-born people, if people want to call us that. We have our surrogate and our mum and dad. I am excited and curious about how that will go on through generations and how we define and describe relationships. For example, with Ms Rowley-Smith's surrogate and Max, what is the language used in that type of relationship? However, I would not say it is anything to be offended by. It is exciting to think of how the language on this will be used as we move forward and how can future-proof it for the next generations.
Ms Rachel Rowley-Smith:
We are the first such generation. I have another son as well as Max. As to how my two children will refer to my birth, I do not know yet. I am comfortable with that because it is something we need to explore. There is no rule book or handbook on how this works and it will be whatever works for me. In terms of my half-siblings, my brother is very adamant that I am his sister. I am not his half-sister, I am his sister. We are referred to as auntie or uncle. My four year old calls my brother "uncle". I am interested and excited about how the language will be used as we go forward. For clarity, my personal decision is that my children will know about my upbringing when they are old enough to understand. It is not something that will be kept secret. That is important for them because they may need to use surrogacy in the future. I do not want there to be any sort of stress or confusion. I want to be completely open with them.
We are almost out of time. I thank all our guests very much for coming in. Max deserves a huge gold star for being incredibly well behaved. It is important for us as a committee that we hear from all voices who have experience in this area, particularly from those who have lived experience. It was important we heard from our guests. It was a really interesting and informative session. We wish them the best.