Joint Committee on International Surrogacy debate -
Thursday, 12 May 2022

Rights of Children: Discussion

Vice Chairman

Apologies have been received from Deputy Whitmore and Senator Ruane. We will have two sessions today. The first session will consider the issue 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 the Ombudsman for Children, Dr. Niall Muldoon, and his colleagues, Ms Sarah Groarke and Dr. Karen McAuley. I also welcome clinical child psychologist Ms Caoimhe Nic Dhomhnaill, who is attending online.

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 do. 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, 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 they are 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.

Senator Sharon Keogan

Does the Vice Chairman mind if we express our deepest sympathies to our colleague and Chair, Deputy Whitmore, on the death of her sister Lillian?

Vice Chairman

Absolutely. I thank Senator Keogan.

I now invite Ms Caoimhe Nic Dhomhnaill to make her opening statement.

Ms Caoimhe Nic Dhomhnaill

I thank members for inviting me to join them this morning. I apologise for not being able to make it in person. Advances in reproductive technologies present challenges to us all.

Medical advances and new technologies have plunged mental health professionals and legal professionals into ethical and psychological quandaries that were unimagined prior to the birth of Louise Brown, the firstborn IVF baby, in 1978.

For nearly a century, the world of psychology believed that the welfare of children was best served in a family where a child lived with two biological heterosexual parents. This view has been challenged by recent advancements in technology, which have invited us all to embrace a much wider and more inclusive definition of "family". Psychology has been playing catch-up with medical advances, and all of the advances in thinking need to be enshrined in our legislation.

Mental health professionals have voiced many concerns but, over time, the longitudinal studies in the areas of surrogacy and other assisted technologies have allayed some of these. I will briefly set out some of the concerns psychologists had when these technologies became more widely available. Would the array of new family forms impact negatively on parent-child relationships and children's psychological development? Would children with surrogate mothers have some sense of having two mothers, which might then impact on their attachment to their social-biological mothers? Would some of the challenges that arise in adoption arise with surrogacy? In 2011, Dr. David Brodzinsky highlighted that secrecy about origins and non-disclosure of adoption were associated with poorer outcomes for adopted children. This prompted concerns about how information about assisted conceptions might be imparted to children. Would these families be stigmatised or marginalised by societal norms and culture if there was an ethos of disclosure? How could legislation respect the child's right to his or her history and identity and ensure marginalisation was not a feature? How could best practice in the provision of transparency and access to records be ensured?

(Interruptions).

Vice Chairman

I am sorry, but there was a little interference. I invite Ms Nic Dhomhnaill to continue.

Ms Caoimhe Nic Dhomhnaill

I will briefly discuss some of the research. I believe Professor Susan Golombok and Dr. Vasanti Jadva will be appearing before the committee in a couple of weeks' time. They have undertaken extensive research and longitudinal studies in this area. I will reference their 2012, 2015 and 2017 studies. They have addressed many of the concerns that psychologists and other mental health professionals might have had. In a longitudinal study, they followed four groups of children: egg donation families; gamete donation families; 42 children born through surrogacy; and a control group. The families were studied when the children were aged one year, two years, three years, seven years, ten years and 14 years. They referred to this as the sixth phase of their longitudinal study.

Their research findings were heartening. At all ages, attachment measures - child-parent relationship measures - supported that children born into any of the assisted reproductive technology, ART, groups rated slightly better on attachment measures than the families in the control group. Part of this good early attachment was put down to the fact that these were very wanted children. The absence of a gestational connection did not interfere with development of positive parent-child relationships. Fathers were slightly less involved at the one year mark in the sperm donation group, but this difference was no longer evident when the children were three years old. In the surrogacy group, there was slight dip in measures of children's psychological adjustment at seven years of age. This was to be expected, as it is at this time that children develop an awareness of the biology of reproduction. At seven years of age, less than 50% in the ART donor groups had told their children about their conception. In the surrogacy group, almost all parents had told their children. At the one year mark, 90% of families were still in contact with surrogate mothers. At ten years, 60% were in touch. The failure to tell children was generally related to parents' fear of othering their children.

The concerns regarding the legal position of children born through surrogacy needs to be addressed urgently. Interestingly, an eminent psychologist in this area - Dr. Mali Mann - made a Freudian slip in a paper she was presenting a number of years ago. In so doing, though, she coined the terms "birth other" and "biological other", clearly defining the social mother as the person with the mothering function. Donors and surrogates had an "other than mothering" function. We urgently need legislation to protect the relationship these children have with their functioning mothers and to afford them all the legal privileges, inheritance rights and so on afforded children who are not born through surrogacy. The State needs to legislate to ensure existing children and all future children have access to their histories and identities. In some extreme situations, access to the history of two donors and one surrogate may be required. The legislation needs to be agile so that future technologies, whatever they may be, can be accommodated.

The preponderance of research in adoption and surrogacy studies points to the value of full disclosure. Children's responses to being told vary from interested and curious to totally disinterested. They are seldom distressed. When children are introduced at a young age to information about their parentage, outcomes are better. Fertility clinics and surrogacy agencies should be required to support parents in introducing age appropriate information about parentage at a very early age. An undertaking to do so should be mandated by these agencies and psychological support should be offered.

Parents' reluctance to disclose to their children has been linked to a lack of education on why and how to do this and fears their children will be marginalised. Changes in legislation can pave the way for inclusion of previously marginalised groups, as we have clearly seen in recent years with progressive legislation regarding gay marriages, divorce etc. Legislation that includes new family formations protects the needs and rights of children and families. Just because people become parents in non-conventional ways does not make them less capable parents. Legislation needs to treat all of our children equally and to offer children born through surrogacy all the privileges offered to children born in more conventional ways. Their choice to trace or not to trace their parentage will be an individual choice, but access to records about their births and-or parentage should be made accessible to them in early adulthood.

Dr. Niall Muldoon

I thank the committee for the invitation to speak to it on the matter of international surrogacy, including the right of children born through surrogacy to preserve their identities. Our office submitted our full observations on Monday. Therefore, I will only hit on a number of important points in this statement.

As committee members are aware, the Ombudsman for Children's Office, OCO, is an independent statutory body that was established in 2004 under the Ombudsman for Children Act 2002. Under that Act, the OCO has two core statutory functions: to promote the rights and welfare of children up to 18 years of age; and to examine and investigate complaints made by or on behalf of children about the administrative actions of public bodies, schools and voluntary hospitals that have, or may have, adversely affected a child.

Our office has previously expressed the view, and continues to hold the view, that provision should be made in law for the rights of all children in Ireland born through surrogacy. The Health (Assisted Human Reproduction) Bill 2022 presents a significant opportunity to provide clarity for children who will be, and have been, born through domestic and international surrogacy. However, as outlined in our office's observations, we are of the view that the Bill, as it stands, does not have sufficient regard to children’s rights and that a number of issues need to be considered further to ensure the Bill will be child centred and rights based.

Ireland has an obligation under international law to respect, protect and fulfil the rights set out in the UN Convention on the Rights of the Child, UNCRC, for all children in Ireland born through domestic or international surrogacy. In this regard, we are concerned about the absence of provision in the Bill for children born through international surrogacy and the Bill’s silence as regards children already born through a domestic or international surrogacy arrangement. The OCO acknowledges concerns that a double standard may arise if parental orders are granted in respect of a child born through commercial surrogacy abroad. The objective of maintaining the integrity of a domestic prohibition of commercial surrogacy is understandable. However, categorically excluding the possibility of recognising the relationship between a child born through international surrogacy and his or her intending parents will have immediate and grave consequences for the child and is contrary to the UNCRC and the European Convention on Human Rights. We recommend, therefore, that the Bill include provision both for children born through international surrogacy arrangements and for retrospective assignment of parentage and parental responsibility in both domestic and international surrogacy arrangements.

Article 3 of the UN Convention on the Rights of the Child requires that the best interests of the child be treated as a primary consideration in all decisions relating to a surrogacy arrangement that affects the child. Although this principle is partially reflected in some of the Part 7 provisions of the Bill concerning surrogacy, we believe these provisions can be strengthened to align the Bill fully with the principle set out in the UNCRC and the standard set out in Article 42A of the Constitution. Therefore, we recommend that the Bill explicitly provide that all decisions made in respect of a surrogacy arrangement that affect the child must have regard to the best interests of the child as the paramount consideration.

We welcome the fact the Bill provides for the recording of information relating to the origins of children born through domestic surrogacy on a national surrogacy register and that it allows children aged 16 and 17 to apply to obtain such information. However, we believe further attention needs to be given to the provisions relating to children’s access to information, with a view to aligning the Bill fully with children’s right to preserve their identity under Article 8 of the UNCRC and with an approach that respects the evolving capacities of children. In this regard, we encourage consideration to be given to amending the Bill to provide that information on the origins of children born through international surrogacy and children already born through surrogacy must be recorded, and to provide that applications to obtain identifying and non-identifying information on origins may be made by a child or on behalf of a child by the child’s parents or guardian, without limitations as to the child’s age.

I thank the committee for the invitation. My colleagues and I will be very happy to any questions.

Vice Chairman

I thank Dr. Muldoon.

Senator Mary Seery Kearney

I thank our guests for the opening statements. Ms Nic Dhomhnaill referred to the longitudinal studies and stated that disclosure may not happen where there is a lack of education or understanding of why it should, or where there is a fear of othering the child, yet best-practice experience in psychology suggests and strongly supports the idea that full disclosure from the very beginning is the correct way forward for the child. One of the difficulties in parents' discussions relates to what sort of language happens in this context and how to equip children with age-appropriate words in order that they will have an understanding of what is private information versus what can be publicly shared. I would welcome Ms Nic Dhomhnaill’s thoughts on that and on how we could best build in a mechanism that would ensure that parents would be equipped to have those discussions and on how they can be continuously supported. Most important, how best can the child be continuously supported in that regard?

Ms Nic Dhomhnaill's area of expertise relates to cases where there is family breakdown and the effect of separation on children. As the law stands, mothers of children born via surrogacy are in an especially vulnerable position in Ireland because they have no legal relationship with their child and, therefore, in a case of family relationship breakdown, there is often a weaponising of that child to the detriment of both the child and the mother with whom, as Ms Nic Dhomhnaill pointed out, the child might have had a very good relationship.

Ms Caoimhe Nic Dhomhnaill

On the telling of the child, in my clinical practice I approach that by telling him or her that he or she has been co-created, in order that the parents will be supported with their telling of the child. My experience has been that the parents' level of comfort or discomfort with what is disclosed to the child steers what they are going to say. The success of telling a child relates very much to whether the parents have mourned their journey through infertility and are then in a position to deal with the reality of what they need to say to the child. I think we are all agreed the best practice is disclosure and the longitudinal studies point to that.

The disclosure needs to happen in a very age-appropriate way. I heard a story of a little boy in a GP's waiting room recently saying aloud that he had three mothers. It needs to be done in such a way that the child will know where it is appropriate or not appropriate to say it, without stigmatising the surrogacy in any way for the child.

Another issue that often is not considered relates to the fantasies children may have about a surrogate mother, and this is where education and some psychological support is of great benefit. Much work that has been done shows that if a parent, or any idea of a parent, is absent, the fantasies of the child has of that absent other will, invariably, be extreme. They can involve a fantasy of, say, a very benign figure who might come and rescue the child in adolescence when he or she gets into conflict with his or her parents, or they can be malevolent, whereby there can be a fear that the surrogate mother might eventually come and want to kidnap him or her. They are the aspects psychologists can help with. More psychological support needs to be provided to help people with that disclosure to uncover the fantasies a child might have.

Children can also sometimes have a fantasy that his or her mum and dad have gone to a lot of trouble to get the child. That is important because if a child thinks that is the case, whether because they travelled to Ukraine or wherever, that can leak out in the child thinking he or she has to be good. Many of the issues I have seen with children born through surrogacy arriving into the practice have related to how the information has been given to the child.

I agree with the Senator regarding weaponising. The most tragic cases I have seen in family breakdown have been when assisted reproduction has been weaponised in the legal battle and custody. I fully support the legislation to protect the rights of biological and non-biological mothers in surrogacy so that this cannot be weaponised when people separate.

Senator Mary Seery Kearney

In that regard, the reason for surrogacy, certainly for heterosexual couples, is generally because the woman cannot carry a child to full term. In a second relationship, the father may go on to have other children. In that regard, I have seen the role and access of the mother diminishing as siblings are born and that where there is a very strong bond and attachment between the mother and child, there is a loss the child experiences as the mother cannot go in and argue her access rights because she is afraid. My view is that the Judiciary would be very sympathetic in such a situation, but who would want to be the mother to test that? The impact of that on the child and the possible confusion for the child would be significant.

Deputy Jennifer Murnane O'Connor

I, too, thank our guests. I have two questions. To follow on from the remarks of Senator Seery Kearney in respect of information given to the child, how does early discussion about a child's identity impact his or her understanding and how he or she feels about the conception method?

Public services are limited and have long waiting lists. What solutions or systems do our guests envisage to enable children to quickly and easily access counselling when it is needed? That question keeps coming up with me recently.

Ms Caoimhe Nic Dhomhnaill

If the issues are handled appropriately, I do not foresee this group of children being likely to require more counselling than the average child across the population does. All the research points to very good outcomes. I remember when I started work with children born through IVF, there was always speculation as to how these children would do and how the disclosure would affect them. The children are doing well. I would not move towards a belief that these children will need counselling. What is really important, however, is how they are told. The fertility clinics and surrogacy agencies may well have a role in that regard in, first, considering with people why they might tell or not tell and hearing their ambivalence about doing so. Senator Seery Kearney spoke about weaponising in family breakdown. The most heartbreaking situations I have seen in family breakdown are when the children are told at the point of the breakdown. That can be prevented by going back and making sure early disclosure happens in an age-appropriate way.

Senator Jennifer Murnane O'Connor

What is Dr. Muldoon's view on counselling and the system? What is his recommendation or what does he see in that regard? Services are currently limited, with long waiting lists. What option could be considered? I totally agree with his remarks in his opening statement in respect of children's rights and the best interests of the child. For me, that is the priority here and I welcome that. I know it is his priority as well. I totally agree with that.

Dr. Niall Muldoon

As regards what has already been said, Ms Nic Dhomhnaill put it very well. The idea here is that we need to start the conversation long before the child is born. The intended and surrogate parents, as well as the clinics and any other parties that may be involved, need to discuss how this will work once the child is born. The information needs to be clear. There is a need to gather that information. As we stated, we recommend that children get full access to information when they desire it. As such, that information has to be gathered. If one is gathering it, one needs to educate the people involved that the child be informed as soon as possible in the appropriate way, as Ms Nic Dhomhnaill stated. That is the way forward. It is about how one minimises any trauma that may come from the circumstances. I refer to the idea that children always wonder who their parents are and what they thought about them. Whatever the parental background is, children try to figure it out. If one is honest and open with a child in an age-appropriate manner, things become much easier. That has to happen with the professionals with whom the child deals. For example, the GP, the gynaecologist and anyone who had interaction with the child in the first few years has to be honest and open about the background. Those are the sorts of things that need to be considered. That is a question of culture as well as public services.

Senator Jennifer Murnane O'Connor

It is, yes.

Dr. Niall Muldoon

We need to move in that direction but having these discussions here openly and clearly is a really good start. Ms Nic Dhomhnaill's remarks in respect of this already happening are very important. There are stories from the background that can be put out there and from which we need to protect children and families. It is about trying to prevent future trauma. The best interests of the child are very clear in that regard.

Senator Jennifer Murnane O'Connor

I refer to the real hunger of all the groups and witnesses we have had in, and the families in particular, to get a Bill that is there for the children because it is all about the children. We have heard some lovely stories and what I have taken from them is the need to ensure we are listening to the stories and what our guests are saying and then get the Bill right. That is what the families and surrogate parents want. This will be a really good Bill but we need to ensure we address all the issues going forward.

Senator Sharon Keogan

I thank Ms Nic Dhomnhnaill and Dr. Muldoon for their statements this morning. There is no doubt these children are very wanted children. We have seen that in recent weeks via testimony of parents who have come before the committee. However, it is clear from the discussion this morning that there is a Pandora's box of psychological issues surrounding surrogacy. My first question is for Ms Nic Dhomhnaill. As a person who works in the area of child psychology, particularly in the context of families where the parents are undergoing a divorce, she has obviously seen cases where children feel some form of responsibility or guilt for the separation of their parents. That can tie into feelings of abandonment that can be very damaging to a child's sense of self and strong core identity. I ask her to comment on the possible psychological effects of a child finding out that he or she was conceived through surrogacy and then having to wait until attaining the age of 16 or 17 to request identifying information that he or she will possibly never receive.

My second question is for Dr. Muldoon. I wish to put on record comments by the commissioner for children's rights in Ukraine, where commercial surrogacy is common and, indeed, a growing business. The Commissioner of the President of Ukraine for Children's Rights, Mykola Kuleba, has stated that surrogacy in Ukraine is unregulated and violates children's rights. According to him, surrogacy is the exploitation of women by private businesses in order to earn income and meet the needs of adults, but it violates children's rights. He stated:

I am categorically against commercial surrogacy. It is the objectification of the child and its positioning as a commodity.

What is the view of Dr. Muldoon on those comments? How does he consider that surrogacy protects the best interests of the child, their right to identity and their access to origins? It leaves these children in statelessness for years because adults have focused on their rights rather than those of the child.

Dr. Muldoon's role as Ombudsman for Children involves the investigation of complaints about services provided to children by public organisations. On Tuesday, Deputy O'Gorman apologised on behalf of the Government to all of those who had been hurt by the legacy of illegal birth registrations in this country. Is it possible that the complex nature of international surrogacy and particularly the manner in which the rights of the children, surrogates, donors and prospective legal parents can come into conflict may lead to a future apology to persons who are hurt by this system being necessary?

Ms Caoimhe Nic Dhomhnaill

This Bill is about the rights of children but we also need to be inclusive of the surrogate mothers. My understanding and reading of the research is that the surrogate mothers do not have an intention to have and rear a child and that becoming a parent is about the intention to become a parent. The surrogates are reporting non-attachment to the children in question. I am in favour of legislation and of disclosure to children based on the view of Dr. Mali Mann, who has done a lot of research in the area, which I have mentioned. That view is that the surrogate mother should not be promoted in the child's eyes to a status that is in any way on par with that of the social or functioning mother. That is really important in the disclosure. The surrogate mother should be disclosed as another person who assisted in the child's coming into the world while the absolute significance of the functioning parents is maintained.

On the age at which children should have access to their records, I am not sure. I would need more time to think about it. I would have thought 18 but I am hearing discussion of 16 or 17 this morning. On the basis of my background in child psychology and adolescent psychology in particular, I would say that there is a peak of adolescence at which issues of identity reach a crisis point. This is referred to as the individuation stage of adolescence. All of the crises, including anorexia, bulimia and self-harm, are much more likely in what we call the middle phase of adolescence, the ages between 14 and 16. It is really important to consider the developmental stages of adolescence and to look to the age at which someone can seek out their records as being one beyond that peak of adolescence. I am not sure that the age of 16 is beyond that peak. That is my concern. It might be used as a weapon against the biological or functioning parent. Perhaps Dr. Muldoon would like to address the other issues.

Vice Chairman

We have just under a minute but I am happy to give Dr. Muldoon an extra minute to answer Senator Keogan's questions because the time would be very tight. I will also mention that the question of yesterday's apology is not relevant to today's committee meeting so there is no obligation to respond.

Dr. Niall Muldoon

I have read the feedback the Ukrainian commissioner for children has given. From our point of view, we are against commercial surrogacy. We are very clear in that regard. The best interests of children need to be protected from the possible exploitation of anybody, whether child or mother. We are in agreement on that. We also believe that the rights of children need to be protected by legislating and creating opportunities now. That is what this committee is here for. This is about creating an opportunity so that there will be no future need to apologise to anybody. A great amount of work is being done with regard to international rights standards. I might ask my colleague, Ms Groarke, to go into that a little bit further.

Ms Sarah Groarke

To add to what the Ombudsman for Children has said, we are in favour of upholding a prohibition on commercial surrogacy domestically with a view to preventing the risk of the sale of children. We cannot regulate what happens in another jurisdiction and whether that jurisdiction prohibits commercial surrogacy but we can regulate to ensure that, once children are brought home to their parents in Ireland, their best interests are the paramount consideration in determining what happens to them. This is not only to provide clarity for those children and their families but is also mandated by the UN Convention on the Rights of the Child and, more importantly, by the European Convention on Human Rights.

Deputy Kathleen Funchion

I was listening to the contributions on my way here. I have a few questions. I might start with Dr. Muldoon and his colleagues. We need regulation because things are going to happen whether we have regulation or not. People can have a certain view and be against something but it will happen regardless of whatever decisions are made by any person who is in government. I would like to get Dr. Muldoon's views on that. There are children who are in urgent situations because of their parents, whose family status may not currently be recognised, having very serious medical issues. What would Dr. Muldoon recommend in that regard? Is there a course of action that could be taken urgently in respect of those children?

I also have questions for Ms Nic Dhomhnaill with regard to child psychology in general. There are all sorts of different types of families in the modern era. I welcome that. There are people who parent alone. There are people who have one, two, three or four parents. There is a whole range of situations. It does not matter to me whether there is one person parenting alone or ten parents or whether those parents are male or female. I would like to get Ms Nic Dhomhnaill's general view. With regard to child psychology, there is a range of issues that all children face which may have no connection or link to surrogacy. There could be what some would deem a traditional family, that is, a mother and a father, a female and a male, and 2.5 children, in which everything looks great from the outside but those children may, for whatever reason, be seeing child psychologists regularly. I am not saying that as a criticism. I am a big believer in counselling and I believe that play therapy should be available in all schools and that all children should have some type of play therapy because it is very good for them. The point I am trying to get to is that it is really important that we do not in some way single out children born through surrogacy as having issues that other children do not have. It is really important that message goes out loud and clear from the committee today. I would like to get Ms Nic Dhomhnaill's views on that.

Perhaps Dr. Muldoon could go first and address the question of regulation and those urgent cases in particular. I am conscious that this committee will operate for, perhaps, three months and will then produce a report and that it will be some time before all of that gets into legislation. There are some really difficult situations out there and I am interested in Dr. Muldoon's views.

Vice Chairman

There are four minutes for replies. If we stick to the time, we will be able to get another round of questions in.

Dr. Niall Muldoon

It is crucial that we legislate. We have to move forward with this. Again, the idea of the Bill moving forward without regulating for international surrogacy and retrospective parental rights just cannot be fathomed. We need to prepare. We have children who are currently in that limbo and whose parents do not have full legal rights in respect of consent and various other issues, whether in the area of education, medicine or other matters. We need to prepare legislation for that as quickly as possible. That is why the preparations being talked about relate to pre-surrogacy arrangements. We should look at the process as starting as early as possible so that we know who is in charge and who will take what responsibilities and at what stage. We should also allow for a post-birth scenario. Should anybody change his or her mind, there must be some sort of a framework that allows for those disputes to be settled and for decisions to be made as quickly as possible, which is again for the benefit of the child.

The best interests of the child suggest that at no stage should he or she be left without somebody who has full parental rights who is willing to accept them. That is crucial in order that those children can be looked after in the best way possible. That is the legislation members, as legislators, need to bring forward so we can protect all those children. Regardless of where they are born and what the background is, when they come back to Ireland they should have the right that they deserve, and that every other child has, because it has been set out in a regulation in an appropriate manner. The best interests of the child are served that way. Again, for children in their current circumstances, we need to know we will look at the retrospective scenario so the legal limbo is taken away and there is clarity regarding who has rights in that regard.

Ms Caoimhe Nic Dhomhnaill

It is important to put on record the rates of psychological adjustment are actually better in families where there have been assisted methods of reproduction. Any pathologising of these children is something that belongs way back. It belongs in the early 1980s. Psychology has moved way beyond any pathologising of children who are born in different family formations.

Vice Chairman

I will ask a couple of quick questions. I thank all our witnesses for being with us. It has certainly been very interesting. It has been particularly interesting to hear about the research outcomes. In 2011 or 2012, I was involved in the launch of the Growing Up in Ireland longitudinal survey so I was particularly interested to hear about the research Ms Nic Dhomhnaill referenced. It is very interesting to hear that 90% of families were in contact with the surrogate mother after the first year and 60% of them were in contact a decade later. When we think of how that lady's life may have changed in a decade, it is quite an incredible feat and shows the strong bonds and connections. Ms Nic Dhomhnaill's response to Deputy Funchion on the rate of psychological outcomes being better when there is assisted reproduction is also very interesting. I have a couple of questions on those studies. Will she give us a little more information about where they were conducted, how people were selected or came forward to participate and, most important, whether anything has been done to track these or other families since 2017?

I note the two major considerations from the Ombudsman for Children's Office - it encourages that consideration be given to amending the Bill around "the origins of children born through international surrogacy and ... [those] already born through surrogacy" and how they are recorded and, in particular, that the application to obtain identifying and non-identifying information should be done "without limitations as to the child's age." I would love to learn a little more about how that might work in practice and why the ombudsman is saying "without limitations", given what we have heard from Ms Nic Dhomhnaill. Our remit as a committee relates to the international aspect but, if possible, I would love to hear whether Ms Nic Dhomhnaill believes the committee should make a recommendation on those two key recommendations she has given us, through domestic surrogacy.

Ms Caoimhe Nic Dhomhnaill

I am not sure of the follow-ups beyond 2017, but I am sure Dr. Golombok will be able to answer that when she appears before the committee. The children probably have not reached the appropriate age. A six-phase study has just been started. There are biases in the fact the rates of psychological adjustment are better in this group of children because education in this group will be different. If members of this group can afford to pay for surrogacy, they are of a different socioeconomic status. There are lots of issues in the study. I have not looked at the control group. I will need to dig into it a little more to see whether all of that has been controlled for in the control group. I just wanted to put on the record the psychological adjustment is good.

Vice Chairman

I thank Ms Nic Dhomhnaill. That is very helpful. As she said, it will be great when Dr. Golombok appears before the committee.

Dr. Niall Muldoon

I will ask my colleague, Dr. McAuley, to add to that.

Dr. Karen McAuley

I thank the Deputy for her questions. There are a number of points and I will try to be as brief as I can. An important point for us to raise on what is currently provided for in the Bill relating to the ages at which children may obtain identifying and non-identifying information, and the ages at which a parent or guardian will do so on their behalf, is the rationale for what is provided is not clear to us. There are a couple of issues. First, we are concerned about the fact that while a child is defined in the legislation, broadly, as a person under the age of 18, when it comes to the whole question of applying to access information, 16- and 17-year-olds are being defined as adults. That is not appropriate from a child rights perspective because it removes the scope of any additional safeguards and supports a child might benefit from having the option of accessing by virtue of being under the age of 18. The Bill should be consistent in respect of access to information about identity and should consistently apply the definition of a child as a person under the age of 18.

The second piece around the recommendation we made is about having regard to the international children's rights standards, where children's rights to information about their origins and preservation of their identity are held as children. The international standards, such as the Convention on the Rights of the Child, etc., do not prescribe a minimum age at which children should be able to exercise that right. Quite an agile approach is provided for, which is that the child is the rights holder and the person entitled to exercise his or her rights as a child. The role and responsibility of parents is to support children in the exercise of their rights in accordance with children's evolving capacities.

We appreciate it is challenging but we suggest the committee might like to think about providing for a more agile approach rather than looking at the whole question of minimum ages because it is quite precarious. If committee members feel the need to look at prescribing a minimum age, whether it is what in the legislation right now or another age, we encourage them to think about the specific purpose of prescribing that minimum age. What will it achieve for the child?

Senator Mary Seery Kearney

We cannot emphasise enough that children are independent rights holders all by themselves. These rights are not granted by their parents, or obtained by their parents and dispensed to them, but in fact something they hold in their own persons from before they are born all the way through. That is important and, consequently, it is particularly important their identity is preserved. I read the ombudsman's more extensive submission, which relied heavily on the UN convention and the role of principles. The witnesses were about to elaborate on the EU and I would like to afford them the opportunity to do that. If we have a mechanism, and the committee has heard about the Canadian model in which prior to any commencement of a fertility journey there is an obligation for counselling and setting out agreements of contact expectations, everybody should go into it very clearly with their eyes wide open as to what expectations are made of them. That moves through to the surrogate holding her own bodily integrity throughout, which everybody wants to ensure. We have also heard from a UK lawyer who appeared before the committee, Ms Natalie Gamble, who talked about the safeguards that could be put in to ensure there is no exploitation of the surrogate and the key payment marker points to look for. I see those matters reflected in the Verona principles mentioned in the ombudsman's submission.

I would like to afford the representatives the opportunity to reply to that, but before we do so I will state two things. First, children in Ireland are left in a place of statelessness, not because parents are focusing on their own desires and putting themselves first, but because there are appalling delays in the courts system in Ireland.

As part of the process of getting an emergency travel document, any parent bringing a child home to Ireland has to give an undertaking to issue court proceedings immediately upon his or her return, and that is verifiable. There are delays such that some children in this State will have already started school and still not have been through the courts for the parental recognition of the father, even though court proceedings will have issued.

Second, any apology that may be due in the future will be due to the children who are being let down and failed by the State in the here and now for the fact they have no right of legal relationship with their parents and with their mother in particular. An apology will be due to those children if we do not act and legislate.

Ms Sarah Groarke

I thank the Senator for her questions. I refer back to the European Court of Human Rights judgment which I mentioned. As we know, the court judgment in Mennesson v. France and the court's later advisory opinion provided that domestic law must provide a possibility of recognition of the legal relationship between a child born through surrogacy abroad and the intending parent. That, interestingly, is framed within Article 8 of the European Convention on Human Rights, which protects the right of the child to private life. That means the child's relationship with his or her parents is viewed as an inherent part of his or her identity. That is the point I wanted to make on the European Court of Human Rights.

The Senator briefly referred to children being left stateless and we are concerned by the risk that, though the UN Convention on the Rights of the Child provides that children should have a nationality and that this should not be affected by the method of the child's birth and where he or she is born, in the case of international surrogacy, there is a risk a child will be unable to receive the nationality of his or her intending parents and that he or she will remain stateless for some time. I want to reiterate that, in our observations, both the UN special rapporteur on the sale and sexual exploitation of children and the Verona principles which the Senator referred to are clear that the state of the intending parents is responsible for ensuring statelessness does not occur and for providing the necessary assistance to ensure the child obtains the nationality of the intending parents promptly and after the child's birth.

Ms Caoimhe Nic Dhomhnaill

I would like to make a point about how concerns about the legal status and parentage distract the new parent. At a point when people are supposed to be preoccupied with their babies or young children, there are lots of other preoccupations. We need to think from a psychological point of view about how it impacts on attachment if parents are preoccupied with something else. I agree with all of what has been said before and that the issues are for the state of the intending parents because intention is important. The surrogate leaving the legal rights with the surrogate mother does not consider that she never intended being a parent.

Senator Mary Seery Kearney

I want to follow up on one point. At this time intending parents do not have a right to the equivalent of maternity leave. While some employers are good on that point, there is no right for same in domestic legislation, so this is something we need to address. In an international context there is also a need to place that responsibility on the state of the intending parents, but from a surrogacy perspective, the recovery of the surrogate mother also needs to be enshrined in domestic law. We will have to have a recommendation on the equivalent of maternity leave and extend that to the domestic situation. Do the witnesses have any comments on that?

Vice Chairman

I ask the witnesses to be brief as we are out of time.

Dr. Niall Muldoon

I cannot disagree with that. The concept is well put forward. We need to protect everybody involved in this framework, including the surrogate mother, the intended parents and the child. The best way to do that is to look at what we are providing for all parents and examine if we can match that or even improve it. We should shoot for the stars and try to make it better. That is the way forward.

Vice Chairman

Does Ms Nic Dhomhnaill have anything to add?

Ms Caoimhe Nic Dhomhnaill

No. I concur will all of what has been said.

Vice Chairman

I call Senator Keogan.

Senator Sharon Keogan

We are where we are. People are facing us with a fait accompli. People are coming into this country with their babies and we have to accommodate our legislation accordingly to not allow this State to have children in statelessness or to become ghosts within our State. Ms Nic Dhomhnaill made a comment on surrogate mothers and she said they do not have the intention to rear a child. To me that is the commodification and sale of a child. What are the witnesses' views on this? Is commercial surrogacy right or wrong and is it in the best interests of the child?

Ms Caoimhe Nic Dhomhnaill

I will not be drawn into that moral debate on surrogacy. My role is the protection of the best interests of the children when they are here. When I see a child who has come into the country and is stateless, the best interests of this child are what is before me. I am hearing today that-----

Senator Sharon Keogan

So Ms Nic Dhomhnaill agrees with the commodification of children?

Vice Chairman

Ms Nic Dhomhnaill said she will not be drawn into that debate. She does not have to answer that direct question.

Senator Sharon Keogan

Why would she not have to answer that direct question?

Vice Chairman

She has said she will not get drawn into the debate on commodification.

Senator Sharon Keogan

This is also an ethical issue, so I am just asking Ms Nic Dhomhnaill that question.

Vice Chairman

Yes, and she has explained that she is here to talk about the interests of the child who is born.

Senator Sharon Keogan

I am also here to talk about the interests of the child.

Vice Chairman

It is the child who is born. That was her remit today. Does anybody else have anything further to add on that?

Dr. Niall Muldoon

I have nothing to add on that.

Vice Chairman

Senator Keogan still has a couple of moments if she would like to go on.

Senator Sharon Keogan

No. That is fine.

Deputy Kathleen Funchion

This morning's session has been interesting. The following might be an unfair question to put to Dr. Muldoon. We have discussed regulation and that is best practice, which is what everyone wants to see and that regulation is starting from as early as possible. There is a pre-birth parentage model and there is something similar in Professor Conor O'Mahony's report from 2020, which is invaluable and holds a lot of the key things we need to be doing. Do the witnesses want to comment on that? If they do not want to answer, that is fine. The pre-birth parentage model is the way to go rather than post-parentage because it marks out that surrogacy is another way to parent and is very different from other forms of parentage like adoption. Sometimes people compare or link surrogacy and adoption but they are two very different processes and we need to make that very clear. We have time and I always ask a pre-birth versus post-birth question so why change the habit now a few weeks in?

Ms Sarah Groarke

I am happy to take that question. When we were looking at what model we thought would be appropriate and in the best interests of the child, we considered the report of the special rapporteur on child protection and the children's rights standards that are set out in the Verona principles in particular and what they are seeking to guide states in doing in implementing those child rights principles.

In our observations, as the committee has seen, we have proposed, similar to the rapporteur's report, that a pre-birth model of transferring parentage be established in domestic legislation and that the 2022 Bill be amended to take this into account. We were particularly guided by the Verona principles. Adequate pre-surrogacy arrangements are provided for in the 2022 Bill. Those arrangements include the consent of the surrogate mother and the parents of the donor, and that independent legal advice has been given etc. If the surrogate mother is permitted to confirm her consent for a period of time after the birth, there is no impediment from a children's rights perspective to having a pre-birth transfer of parentage in place. That is why we made that recommendation. We also think, as the special rapporteur has outlined in his report, that this would involve an application for parentage to the courts, alongside pre-authorisation of the surrogacy on the basis of a set of pre-surrogacy arrangements. That would allow for an assessment of the best interests of the child to be taken into account by a court before the surrogacy is proceeded with. Doing that would allow for judicial oversight all the way through the process and not just after the birth. It would also ensure clarity for that child from day one.

Dr. Niall Muldoon

Under the regime Ms Groarke has outlined, the gathering of identity information would start early. We will hopefully be offering that information to the child in the future. If the process starts earlier, people get more of a chance to adjust and there are still opportunities, post birth, to adjust again. I think that is the best possible way of making a framework work.

Vice Chairman

Has Ms Nic Dhomhnaill anything to add?

Ms Caoimhe Nic Dhomhnaill

It is not something I have thought about. I would be answering off the cuff if I tried to respond about the pre-birth model or the post-birth model. I think the pre-birth model might include delays before the intending parents go wherever they are going for their baby. I see the dilemma. I have seen children in practice where there have been three- and four-year delays around parental orders. I have not thought clearly about the issue.

Vice Chairman

An interesting point which, to my shame, I had not thought about was referenced by Senator Seery Kearney. That point relates to the maternity leave aspect of the issue. I am interested to hear from Ms Nic Dhomhnaill in that regard. Will she give us context about the attachment between mothers and their babies, and the benefits that mothers, in particular, gain during maternity leave?

I note that in her opening statement Ms Nic Dhomhnaill spoke about all legal privileges that are not currently with children born through surrogacy. She mentioned, in particular, inheritance rights. Perhaps this is a premature question when surrogacy is still relatively new, but do we have any information as to whether there is a psychological impact on children who may not feel fully part of a family?

Dr. Muldoon outlined two further and clear recommendations in his statement. He suggested we should include provision for children born through international surrogacy arrangements and the retrospective assignment of parentage. As a result of any research his office has carried out on that matter, has Dr. Muldoon guidance to offer us as to how that could be best achieved through the committee and its recommendations?

Ms Caoimhe Nic Dhomhnaill

I have a view on the maternity leave aspect. Its lack really disadvantages children who have been born via surrogacy and have come into the country. To quote D.W. Winnicott, there is no such thing as a baby; there is only a mother and baby. A baby cannot survive. During that early stage, when a child is four months old, six months old, or whatever, the primary caregiver plays a role in the stage of preoccupation. During that stage, a mother is preoccupied with her baby. These children are disadvantaged if the mothers cannot avail of maternity leave.

The Vice Chairman also asked about inheritance rights. As children's knowledge evolves and they become aware, it has the potential to be divisive in families if other siblings have more entitlements. That is a big issue.

Another issue I have been thinking about relates to grandparents. It is a lineage of which the children are deprived. The grandparents do not have any legal rights. If children do not have some legislative connection to their mothers, what is the situation with regard to grandchildren? What relationship do the child's children have with the biological mother or non-biological mother, in some surrogacy cases?

There are considerable connotations with regard to child development. There is the possibility for a split, for divisiveness between siblings. There are also issues relating to the maternal preoccupation stage and the relationship between mother and baby.

Ms Sarah Groarke

I thank the Vice Chairman for the questions. She asked about retrospective arrangements and in responding, I would like to give a frame for the recommendations we have made. We want to bring all those children, whether they were born prior to the commencement of the Bill or will be born in the future, to same level. We must ensure those children are not experiencing differential treatment on the basis of when they were born and the framework in which they were born. In providing for retrospective surrogacy, we noted that provision was made for the making of retrospective applications in the original drafts of the Children and Family Relationships Bill in 2014 It is not clear why those provisions were not carried through to the 2022 Bill.

We see precedent for providing for retrospective recognition of parentage in the Children and Family Relationships Act in terms of donor-assisted human reproduction. The international standards recognise that parentage cannot be determined on the basis of the same standards that might apply in future, under the framework of the 2022 Bill, because those standards were not previously in place. Adapted criteria are required to be placed there for those applications.

In terms of international surrogacy arrangements, we have recommended in our observations that a post-birth framework should be put in place. As I mentioned previously, a framework must be put in place to recognise the relationship between a child and his or her parent arising from an international surrogacy. That does not mean we should automatically recognise parentage. The UN special rapporteur on the sale of children and the Verona principles have made clear that a process needs to be put in place to give discretion to a court to examine what is in the best interests of the child in such a situation.

Senator Mary Seery Kearney

I was going to come back in on the retrospective question but the Vice Chairman asked eloquently about that issue and received eloquent answers.

The spectre of commercial surrogacy arises. I know what I mean when I use that term. I know where I draw the line between commercial and compensated surrogacy. Domestic surrogacy is a compensated surrogacy because there is provision for childcare and all the things that should be attendant to a surrogate mother on this journey. However, there is no internationally accepted definition.

One of my concerns is that in the conversation relating to commercial surrogacy, where places such as the US and Canada are the only ones that same-sex couples, in the main, can go to, if we either fail to define it or define it incorrectly, we will have a difficulty. If we rule out payment, say that there cannot be payment in any circumstances, ban it and introduce some sanction, the State will have difficulty finding a way to proceed. In such circumstances, we will be discriminating against children - children will be born regardless - and we will also close down the possibility of parentage for a number of same-sex couples. A question that arises in this regard relates to how we resolve the fact that there is not an internationally recognised definition. When the term is used, there is at times a drawing towards the most exploitative end of things. Nobody who is paying a fee in the context of surrogacy, which can be well over $100,000 in Canada, is contemplating exploitation. In fact, Canada is where there is a very good model for ensuring that nobody is exploited. I would welcome that perhaps we discuss for a little how we might overcome the concern I have outlined. How do we start grappling with this matter?

Dr. Niall Muldoon

As we know, we can only legislate here-----

Senator Mary Seery Kearney

Yes.

Dr. Niall Muldoon

-----for the domestic situation. We are looking at a situation where a child is born somewhere else and whether will we provide him or her with the rights if his or her intended parents are living in Ireland. From that point of view, we need to create a framework which allows that to happen. However, we also need to ask ourselves a series of questions as to what is in that framework. As the Senator said, there will be changes over the next ten years. Different methods of surrogacy will affect things. We have to future-proof it as well. The questions should be about what is in the best interest of the child. We need to figure out what questions we want to ask about how this came about. That is probably the way forward. As the Senator said, there will always be grey lines between what is compensated and what is commercial. There is no benefit to drawing it in a numerical way. We need look at the questions. That is where the court has to be very clear that it asks deep questions about how this came about. Again, if there is a very clear pre-surrogacy framework, then that suggests somebody is taking care of everybody involved. The level of money is not the only exploitation. You can be exploited in other ways, such as by means of intimidation. There are all sorts of other ways. It is important to make sure that the care is taken at all steps. From our point of view, it is about what is in the best interest of the child once they are born and that is the crucial part. They then come back to Ireland or their intended parents are living here. That is the crucial part. There is no safety or clarity.

Dr. Karen McAuley

I wish to go back to a point that Dr. Muldoon made earlier that is absolutely central to this entire debate. I refer to the best interests of the child being treated as the paramount consideration. That should be the thread that guides all of the thinking and deliberations in terms of legislating and then in terms of what happens in practice in the context of the legislation. We appreciate these kind of concerns. I am not sure if this is relevant to the Senator’s question about double standards, but we support the prohibition on commercial surrogacy in a domestic context because we regard it as the strongest way to mitigate against the risk of the sale of children. At the same time, we recognise that commercial surrogacy happens in other jurisdictions where we have no control. The key thing, as Dr. Muldoon said, is we need to face that reality and not look away from it. We need to legislate for that reality in a way that upholds the best interest of the child. Not legislating will not serve anybody’s interest, not least the child’s.

Senator Mary Seery Kearney

We come back to the fact that by focusing on the best interests of the child, we recognise that there are cases such as the one we heard about from Dr. Gamble, where even in altruistic situations - it is referenced in the submission - there can be coercion and exploitation, such as, for example, an obligation on a sibling to carry a child. We need to be alive to that possibility. Parents carrying out due diligence will look to a future of some day having a rational – or perhaps irrational – teenager, and there will be a heap of things thrown up, even if they have disclosure from pre-birth all the way through. There will be things thrown up and parents want to be able to answer those questions and want the child’s history to be the most ethical one possible. They do not want a story that involves an element of coercion or exploitation. That is recognising that parent after parent has come in and said that they do not want that association for their child. This is their child’s story at the end of the day. It is the child’s life and being.

Vice Chairman

I thank all of our witnesses for being with us. We have a very tough task as a committee in terms of the time limitations on us. It will only be possible for us to produce our report after hearing from expert witnesses such as those who joined us this morning. We really appreciate their being with us.

As our next witness is not due to join us online at 11 a.m., we will go into recess for a couple of moments.

Sitting suspended at 10.56 a.m. and resumed at 11.04 a.m.