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Joint Committee on International Surrogacy debate -
Thursday, 26 May 2022

Potential Double Standards in Protections for Surrogate Mothers in Domestic Arrangements: Discussion

I welcome our guests. We will have two sessions today. In our first session we will consider the potential for double standards in the protections afforded to surrogate mothers in domestic arrangements. We will also consider the question of protecting the rights of the child and existing children to their history and identity, including their genetic, gestational and social origins. On behalf of the committee I welcome Professor Susan Golombok from the Centre for Family Research at the University of Cambridge, Professor Deirdre Madden from University College Cork, UCC, and Dr. Brian Tobin, from National University of Ireland, NUI, Galway.

Before we begin, I will deal with the issue of privilege and some housekeeping matters. All witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation 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 limitations to parliamentary privilege for witnesses attending remotely outside of the Leinster House campus and they may not benefit from the same level of immunity from legal proceedings as a witness who is physically present. Witnesses participating in this committee session from a jurisdiction outside the State are advised that they should also be mindful of their own domestic law and how it might apply to the evidence that 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 make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard I ask members participating via Microsoft Teams that prior to making a contribution to the meeting they confirm they are on the grounds of the Leinster House complex.

Again, I welcome everyone here this morning. I will invite Professor Golombok to make her opening statement first because I understand she must leave the meeting by 10.30 a.m. Then I will call on our other two witnesses.

Professor Susan Golombok

Thank you very much for inviting me here today. I would like to talk about some research being conducted at the University of Cambridge Centre for Family Research on surrogacy. We have conducted four studies in recent years. The first is a longitudinal study of surrogacy families with heterosexual parents. The second is a study of gay-fathered families formed through surrogacy which we conducted in the United States. The third is a longitudinal study of surrogate mothers and their families which was led by my colleague Dr. Vasanti Jadva and the fourth is a study of surrogate mothers in India conducted by my former PhD student, Dr. Nishta Lamba.

In this opening statement I am going to concentrate on the first study but I am very happy to answer questions on the other three. The study focused on surrogacy families with two heterosexual parents. The concerns that have been raised about surrogacy families are several. One is that there is no opportunity for the intended mother to bond with the child. Another is that the surrogate may remain in contact with the family as the child grows up, which can be seen as a good thing in terms of children understanding their origins but could be seen as potentially problematic in terms of undermining the intended mother's feelings of confidence as a parent. A third concern is that surrogacy remains controversial, so that families created in this way are sometimes exposed to disapproval by family, friends and wider society. Perhaps the key question in all of this is the potential psychological harm to children from having been relinquished by the surrogate and whether this is more of an issue if the surrogate is the genetic mother of the child and if money had changed hands. These are some of the concerns that have been raised about families formed through surrogacy. Our study was designed to address these issues and look at what actually happens to children born into these circumstances.

Our longitudinal study involved a representative sample of 42 families formed through surrogacy who were recruited through the Office for National Statistics in the UK, a comparison group of 51 families formed through egg donation to control for the use of third-party assisted reproduction and a further comparison group of 80 families formed through unassisted conception that were matched as closely as possible. The research set out to answer two key questions. First, do surrogacy families differ from either egg-donation or natural-conception families in terms of the quality of relationships between children and the intended parents and the psychological adjustment of the children? We were also interested in how the children themselves feel about being born through surrogacy. The second question we looked at was how the relationship with the surrogate turned out over time. It is often assumed that the intended parents would reject the surrogate once they had the baby.

All of the families had children born in 2000, at the millennium. It was a very in-depth study and we collected data from mothers, fathers, the children themselves and also the children's teachers to gain an independent account of their behaviour at school. We used different methods, such as in-depth interviews, observational assessments of parent-child interaction, questionnaires and also ratings of any emotional behaviours shown by the child. This was done by a child psychiatrist who was unaware of the child's family background.

This study, which is just ending now, was carried out over seven time points, when the child was one, two, three, seven, ten, 14 and finally, just recently, at age 21, when they became young adults. What we found was that in the preschool years, at ages one, two and three, where there were differences between the surrogacy families and the unassisted conception families, these differences reflected more positive parenting in the surrogacy families. The children themselves were very well-adjusted but there was no difference between children in the different family types.

When we followed them up at age seven, we found that practically all of the parents had been open with their children about their birth through surrogacy. There was no difference between the surrogacy families and the unassisted conception families in terms of the quality of children's relationship with their mother. The children themselves were well-adjusted and they were functioning within the normal range. At age seven, they did show higher levels of emotional and behavioural problems than the children in the other family types but these had disappeared by age ten. Interestingly, these findings mirror what is found in research on internationally adopted children. It seems to be that children in these situations become aware of identity issues at an earlier age than other children, which seems to explain this slight increase in problems around the age of seven, when children develop a more sophisticated understanding of the meaning of inheritance and when adopted children understand the more complex nature of adoption.

When they were 14, we found more positive relationships between mothers and their children in surrogacy families, and we found that from data collected independently from mothers and from the teenagers themselves. The adolescents born through surrogacy showed high levels of psychological adjustment. We were also interested in speaking to the children at age 14 about how they felt about being born through surrogacy. They mainly were not very interested and they would say things like “I do not really mind”, “It does not affect my daily life”, “I feel it is just normal” or “I know it is different but I do not get emotional or anything.” Some were actively positive about it and one child said “I feel special and quite privileged really.” Another said “I quite like talking about it because it is an interesting fact about me.”

At age 21, while we have not finished analysing all of the data yet, the young adults said very similar things. To give an example of one that reflects the feelings of the others, this 21-year-old said:

It is not a big deal to me. It seems clear they wanted me as a child as opposed to it being accidental or something like that. I would say it is a positive thing. I'm happy about it. I have always been happy about it.

When we looked at the parent's relationship with the surrogate over time, we followed them up on this issue until the children were ten. They generally reported very positive relationships with the surrogate. The frequency of contact between the family and the surrogate declined over time but by the time the child was ten years old, 60% of the surrogacy families were still in touch with the surrogate. They were most likely to have lost contact with previously unknown surrogates.

In conclusion, the findings of this empirical study of surrogacy families point to positive family relationships and well-adjusted children. Put another way, just because people become parents in non-conventional ways does not make them less capable parents or love their children less. It seems, in fact, the opposite is true, and that those who struggle against the odds to have children become particularly involved and committed parents.

I will not talk about the other studies because of time. I have sent to the committee a document with all of our published academic papers on these topics. Although I am not showing my slides just now, the final slide shows the cover of my recent book, We Are Family, which summarises all of this research and the experiences of the parents, and has a chapter on surrogacy families and also a chapter on surrogate mothers.

Professor Deirdre Madden

I thank the Chairman and the members of the committee. I am very grateful for the invitation to speak today, particularly in the presence of my esteemed colleagues, Professor Golombok and Dr. Tobin. I have sent an opening statement that I will run through quickly.

I support surrogacy as a means by which individuals and couples can build a family in circumstances where they are otherwise unable to do so. I believe regulation of surrogacy is preferable to a prohibitive approach because the latter can have the effect of driving the practice underground, exposing all parties to risk. We should not, I believe, take the approach of sticking our heads in the sand, thinking that if we ignore international surrogacy, it will simply go away. I believe global surrogacy is a reality that needs to be carefully considered and managed to achieve the best outcome for children, surrogates and intended parents. For this reason, I favour pre-birth scrutiny of domestic surrogacy arrangements to ensure that all legislative criteria are met and that legal parenthood would be assigned prior to or at the birth of the child. I believe this would ensure the child's best interests from the moment of birth are served by clarity in regard to who its parents are.

The 2005 report of the Commission on Assisted Human Reproduction, of which I was a member, recommended that the child born through surrogacy should be presumed to be that of the intended parents. Such a presumption would operate by recognising intended parents as the child's legal parents at birth, subject to the surrogate retaining a right to object for a short period. Any objection could be resolved by a court, which is obliged to prioritise the best interests of the child. The Health (Assisted Human Reproduction) Bill 2022 does not adopt this recommendation and, in my opinion, is not child-centred. There is no mention of international surrogacy or of how intending parents who go abroad for surrogacy can apply to have their parentage recognised in the State. It is as if international surrogacy will somehow cease upon commencement of this legislation. I do not believe this will happen.

I have been invited to speak about the issue of the potential double standards that may result from the difference in legal protection offered to surrogates. In my opinion, we need to move away from legislating for domestic, so-called altruistic surrogacy on the basis that it is ethical or good and ignoring the reality of international, so-called commercial surrogacy on the basis that it is unethical or bad. The reason I say “so-called” is because the reality is more complex. For example, not all international surrogacy is remunerated. We need to consider how best to protect all those involved to the greatest degree possible while recognising that we cannot regulate what happens in other countries.

I understand and fully share concerns in regard to human rights of surrogates and any potential exploitation of women in other jurisdictions but we need to be clear on what exploitation is. I would describe exploitation as taking unfair advantage of someone to benefit oneself. Payment of money does not of itself make surrogacy unethical or exploitative, in my view. Under the Bill, an Irish surrogate can be paid reasonable expenses. When loss of income and other expenses are calculated, this could easily reach €10,000, which is probably not very different from the amount that surrogates are paid in some other countries, excluding the United States, although, of course, this does acknowledge the socioeconomic situation may be different in other countries.

For me, what is more important than the fact of payment is whether the surrogate was in receipt of legal advice, psychological screening and support, understood and freely consented to the arrangements and received all necessary medical care and treatment before, during and after the pregnancy.

We might worry, rightly, about arrangements brokered by unscrupulous agents who do not look after the interests of the surrogate, but regulated professional surrogacy can be very positive because it can support the parties through the process rather than leaving them to wander through an arrangement in good faith but with no advice.

In some circumstances, there may be a power imbalance between intending parents in wealthy states and surrogates from emerging economies, and there may well be regulatory gaps through which unethical practices and unconscionable brokers may flourish. These are the gaps we must be alerted to. Sometimes people speak of commercial surrogacy in broad and negative terms as involving sharp practices where women are misled or coerced into becoming surrogates and do not freely consent to their participation in the arrangement. As I stated in my submission to the committee that examined the Children and Family Relationships Bill in 2014 and I reiterate today, we should avoid making sweeping generalisations about women in particular countries or from particular backgrounds as being exploited. I do not believe, simply because a woman is of lower socioeconomic means, she is therefore unable to make a voluntary informed choice to become a surrogate mother. That is a paternalistic and discriminatory position that does not recognise that women of all backgrounds and means are capable of making their own decisions regarding what is best for them and their families.

The challenge is to ensure those who facilitate and bring about these arrangements comply with appropriate standards in terms of providing women who wish to become surrogates with sufficient information, advice, support and medical assistance to enable them to make those informed choices. This is not dependent on the location in which surrogacy takes place or, to my mind, whether payment is made but rather on the existence of good regulation, oversight of standards and compliance with regulatory requirements designed to all those involved.

The best way forward for Ireland is to make sure we have modern evidence-based surrogacy legislation domestically so that fewer people go abroad for surrogacy. Most people would rather enter surrogacy domestically with the support of family and friends in a familiar and safe medical system with the knowledge they are building their family in an ethical way that is supported legally. However, not everyone has a family member or friend who is willing to become a surrogate for them. This is an enormous undertaking for anyone, involving essentially a year of a woman's life from conception to post-birth recovery with the attendant discomfort and risk. There may also be pressure exerted on family members to become surrogates that may lead to difficulties or breakdowns in relationships. There may be some women who are willing to become surrogates for strangers solely motivated by a wish to help others, but in a country the size of Ireland, the number of such women is likely to be small.

For those who are not able to avail of domestic services for whatever reason, international surrogacy will remain their only option. In the UK, the Law Commission has proposed a solution that essentially recognises that domestic and international surrogacy are different and it is not possible to regulate both in the same way. This is not to say there is a double standard in a pejorative sense but rather to ask how we can achieve the best outcome and provide the best protections in both scenarios, recognising we cannot regulate what happens in other countries.

Providing a mechanism to recognise automatically legal parenthood for those who travel to countries where surrogacy law protects the rights and interests of children, surrogates and intended parents would encourage people to travel to those countries rather than others that may offer less protection. As I understand it, under this proposal the Secretary of State would have the power to designate countries or states for which surrogacy arrangements will be automatically recognised if those countries have adequate safeguards to protect surrogate children.

The current Irish Bill seems to use the absence of a mechanism by which to achieve legal parentage to try to deter people from going abroad. There are several problems with that approach. First, and most important, it is punishing the child for the perceived wrongs of his or her parents. The child's rights should not be negatively affected by the circumstances of his or her birth. Second, it is not realistic. Although it may be hoped that the absence of a legal mechanism will act as a deterrent, people will still go abroad for surrogacy. Irish courts will then have to resolve conflicts between two competing legislative policies, one that, by its silence, condemns international surrogacy as unethical, and the other which, rightly, obliges judges to prioritise the best interests of the child that is born, irrespective of how he or she was conceived. Third, it leaves foreign surrogates with no protection whatsoever in terms of the kind of exploitation the Government says it is trying to prevent as there will be no oversight or scrutiny of those surrogacy arrangements entered into abroad.

Finally, a preferable solution would be to try our best to ensure international surrogacy arrangements meet as many of the same criteria as domestic arrangements as possible. Some of these criteria should be non-negotiable, such as evidence the surrogate has received independent legal advice in a language and manner she can understand, she has given free and voluntary consent to her participation, she has received appropriate medical care and psychological support before, during and after the pregnancy, and the arrangement is in compliance with local laws in the country in which it takes place.

I am very grateful to the committee for dedicating so much time and energy to listening to and learning from expertise and experience to find the best solution of Irish families and children.

Dr. Brian Tobin

I thank the committee for inviting me to join it today. I commend it on its commitment to addressing the myriad issues raised by international surrogacy arrangements and on its engagement with relevant stakeholders. I am deputy head of the school of law in NUI Galway and I was invited national expert for Ireland on the international social services regional consultations on the Verona Principles and, more recently, an EU level impact assessment for a proposed EU digital certificate of parenthood that would aim to recognise legal parentage that has been established in one member state across the EU 27.

I have been asked by the committee to speak to the potential for double standards in the protections afforded to surrogates in domestic and international arrangements. The Health (Assisted Human Reproduction) Bill 2022 provides for a range of robust pre-surrogacy protections for gestational surrogates that mirror the protections provided in the Bill's predecessor, namely, the general scheme of the assisted human reproduction Bill 2017. In regulating the parentage of children born in such arrangements, the State will have to accept inconsistencies between the domestic regime for surrogacy, as contemplated by the 2022 Bill, and international regimes. If the State only proposes to regulate those international arrangements that mirror the proposed domestic regime to avoid any double standards, most international surrogacy arrangements will not be recognised under Irish law.

The 2022 Bill provides for domestic altruistic surrogacy, but any amendment to this or any future legislation that might seek to regulate, either retrospectively, prospectively or both, the parentage of children born by international surrogacy will have to be willing to embrace commercial surrogacy arrangements. A way to reduce this inconsistency would be to make the domestic regime more akin to international regimes by allowing for surrogates in domestic arrangements to be compensated to some extent, though this course of action would, admittedly, make Ireland an outlier in the European Union.

Attempting to reduce double standards by requiring a regulatory body like the assisted human reproduction regulatory authority to confirm the domestic safeguards have been complied with before surrogacy takes place abroad have been rejected elsewhere as being impractical in the context of international surrogacy. It would also be contrary to Part 7 of the 2022 Bill and international best practice for a domestic administrative process to pre-approve the legal parentage of a child born in the context of international surrogacy.

Similarly, ministerial regulations designating certain international services destinations as equivalents and automatically recognising parentage established in such jurisdictions would likely be of very limited effect because few jurisdictions would fully qualify for recognition. Leaving aside the commercial element, some jurisdictions might qualify as equivalent as regards their pre-surrogacy safeguards for surrogates, such as medical and psychological evaluations and legal advice, but they would fall foul of a post-birth safeguard provided under the 2022 Bill, namely, that the surrogate is the legal parent and guardian of the child at birth and can refuse to consent to a parental order.

The law in some commercial surrogacy destinations in Europe and the US that are popular with Irish intended parents strips the surrogate of her legal parentage prior to the birth of the child and does not allow her to revoke her consent freely after the birth to the intended parents having exclusive legal parentage. Such laws are at odds with Part 7 of the 2022 Bill and the requirements of international law. Further, since the publication of the Verona Principles in 2021, international best practice requires, in any event, that a post-birth best interests of the child determination is carried out by a court or competent authority where at least one state does not permit the specific arrangement. To my mind, any of the above suggestions appear inappropriate in the context of international surrogacy.

However, it must be remembered that at the centre of these complex legal and ethical arrangements are numerous children currently being raised in this State, whose best interests and rights under the European Convention on Human Rights require the State to facilitate the establishment of a legal parent-child relationship with both intended parents. However, legislation regulating domestic and international surrogacy should not be rushed. Going forward, I would agree with Professor Madden that the potential for double standards might best be mitigated by the establishment of a more favourable statutory regime for domestic surrogacy, because the one currently provided for in the 2022 Bill is unlikely to be availed of by many, if any, intended parents.

Part 7 of the 2022 Bill should be deleted, allowing the remainder of the Bill to be enacted for other important assisted human reproduction, AHR, issues to be regulated and for the assisted human reproduction regulatory authority, AHRRA, to be established.

In time, a new stand-alone surrogacy Bill that seeks to establish a more balanced domestic surrogacy regime and to regulate adequately the parentage of children born via international surrogacy should be proposed.

We will move on to questions now. I am cognisant of the fact that Professor Golombok has to leave. Therefore, we will go through the rota and each member will have four minutes so they can ask questions to Professor Golombok first. We will probably have a second round, but there are quite a few of us in the meeting.

I welcome the witnesses and thank them for their interesting and helpful information. Every week we come in here and want to learn and up our game just a little bit more, so it is very good to have such expertise in front of us.

Dr. Tobin and Professor Madden clearly highlighted the double standards we could be enshrining in our law, were we to continue the way we are going at the minute. If we do that, we will have a kind of back-door, for want of a better description, post-birth recognition of parentage. We need to recognise the parents. We have an issue that we have to rectify. We have give those children the rights they deserve. That is the basis of this committee. The rationale of what we are here for is to give those children born the rights that they deserve.

I was very curious when I was reading Dr. Tobin’s briefing document. I want to understand second-parent adoption a little bit better. He quite rightly said in his submission that it is not the preferred method but we should align something similar. These parents should not have to adopt. I refer to the French method, where it only takes four and a half months. How are they doing this? They are calling it second-parent adoption. How are they doing it so efficiently and quickly and giving those children the rights that they deserve and need?

My next question is directed to Professor Golombok. Identity is something we are always talking about in this committee. It is very important that we all have the understanding of who we are, where we came from and how we came into this world and an acceptance and celebration of that. In Professor Golombok’s experience, how do we do that? How do we, as a country, regulate to protect those identity rights?

Is it okay if we have Professor Golombok answer the question first and perhaps the leave the question for Dr. Tobin?

It is just so other members can ask questions to Professor Golombok before she leaves.

Yes. My apologies.

Professor Susan Golombok

Certainly one thing we find in our studies of surrogacy, but also children born through gamete donation, is that the earlier that parents begin to talk to them about their origins and how they came to be, the more positive the outcomes are for the children, adolescents and, later, adults. The age at which this begins to happen seems to be very crucial, both from some of the work I have talked about today, but also other studies we have carried out and other colleagues have carried out in the United States as well. With surrogacy, this is much less of an issue because surrogacy, unlike gamete donation, cannot be hidden. Parents are much more open because everybody usually knows that because there was no pregnancy, this is how the child was born. This is much less of an issue for children born through surrogacy. However, of course, if the surrogate egg is used and the surrogate is the genetic mother of the child, then sometimes parents are not so open. We found in our studies that parents had talked to their children about surrogacy but not about the fact that the surrogate’s egg had been used in their conception.

In terms of how to do it, certainly one thing we found is that parents were very concerned about talking to their children. However, those who did so told us that in fact their concerns were unfounded because the children either were not very interested or were curious to know more, but they did not become distressed on hearing this information when they were young. In contrast, we have heard more anecdotally, but also later in our follow-up study, that it is when children find out by accident or under negative circumstances perhaps, such as parents' divorce, that this can have a much more adverse effect on children's and young people’s identity and well-being.

We will now move onto Senator Clifford-Lee, who I believe is on Leinster House campus.

I was going to make my way down to the committee room to ask my questions, but I was not expecting to be called so quickly. I thank our three witnesses for their very enlightening presentations and the documents they submitted to the committee.

I would like to focus in on something that Dr. Tobin touched on. Towards the end of his presentation, he said that a stand-alone surrogacy Bill would be his preference. I would like to ask him to elaborate on that if I could.

Does the Senator have any questions for Professor Golombok? I am very conscious that she only has ten minutes left with us.

Is it okay with the Senator if perhaps others have questions for Professor Golombok?

Absolutely. That is fine.

I suppose I should get down to business. At the age of seven, children are going through a developmental phase where they have, I believe Professor Golombok used the term, a "sophisticated understanding" with regard to their surrogacy. However, I think at that stage they have a more sophisticated understanding of relationships. That tends to be the phase when they do the “I love you more. No, I love you more.” They have that awareness of the complexity of relationships. Does Professor Golombok recommend to us that, as a committee, we should be making recommendations for counselling supports or anything that could go in at that age to particularly support what is a complex developmental phase anyway, and then you add in the complexity of surrogacy onto that? That is my first question.

In the families formed through surrogacy in Professor Golombok’s group, how reflective were they of an international arrangement? Were they all domestic UK-based surrogate mothers in that? I am wondering about that comparison.

Professor Susan Golombok

I thank the Senator for her questions. On counselling, it is possibly the parents who should be offered counselling more than the children. Certainly in the UK, parents are offered counselling before they embark on this route to parenthood. At that point, they do not even know if they will ever become parents. The conversations they have with counsellors about openness and disclosure to eventual children does not resonate with them at that point. Parents tell us that they would love to have access to counselling after a child is born.

Maybe it could be quite early in the children’s lives, at one or two years, or at the point when parents are thinking about beginning to talk to them about their conception. That would give parents much more support and confidence regarding how to proceed. It would carry through to the children because if parents could talk to their children in an easy way in which they could be understood and answer their questions in an age-appropriate manner, the whole process would be much more smooth and parents would not put it off. Some parents talk to others about wanting to be open or to have been open with their children but find the hurdle so difficult that they tend to keep putting it off. Then they feel it is far too late and that it would be too much of a bombshell to give the children the information.

Whether the children themselves might benefit from counselling is an interesting question. It is not something I have really thought about because I thought about the matter more from the point of view of the parents. My feeling is that counselling might make their situation seem more unusual or abnormal, so it might not be helpful. If the conversation happens within the family, it is probably the best way forward. It is the parents who would benefit most from counselling, and the children would benefit as a consequence.

On the question on the sample in the study, the participants were all UK families, so we cannot really say anything about children born to surrogates abroad. As far as I know, there are no studies in the world that have followed up on children of couples who have had surrogacy abroad. It is something that my colleague Dr. Vasanti Jadva has been thinking of doing but, as far as I know, that has not happened. I do not believe it has in the US either. To the extent that we believe it is important not only for children to know they were born through surrogacy but also to have information about the surrogate and, if used, the donor, we believe it is obviously much more difficult, if not impossible, for children if the surrogacy was carried out abroad. For example, my former PhD student, Dr. Nishta Lamba, studied surrogacy in India and found that families who went from the UK to India had no further contact with the surrogate after the child was born. This is potentially problematic for the children.

I thank Professor Golombok. The research was fascinating in the sense that it was so positive. Becoming a parent in an unconventional way does not make one less capable of loving one’s children. I believe the research was really important, and its communication is so important. Professor Golombok said the study covered children born at the millennium and followed them up to the age of 21. Does she intend to continue with this research? It is important to continue it after the age of 21. Maybe Professor Golombok could answer that for me. The research was really good.

Professor Susan Golombok

I thank the Deputy for her kind comments about the research. The age of 21 represents the final phase of the study because we feel we followed the children from infancy right up to adulthood. As the Deputy said, the results were very positive. It would be interesting to follow up further but the most important questions have now been answered. Also, doing a study for 21 years took up a lot of my and my team’s time, and we are now focusing on other issues.

The research has not yet been replicated by another research group. It is more important for other research groups to carry out other studies than for us to continue to follow up on the children. In scientific research, replication is always wanted. It has not happened for some reason in respect of children born through surrogacy, partly because of the lack of funding and partly because it is quite difficult to do. It takes a lot of time, effort and funding. Were research funding to be made available, it would be useful to have another study to determine which of our findings stand up to retesting. We are now 21 years on and attitudes to surrogacy have changed. Many other things have changed too. If I were a funder, that is where I would put the funding.

I thank Professor Golombok very much. She has long been a campaigner for diverse families. Her studies and research are based on a very small sample, perhaps of a couple of dozen people. Given the small sample size, it is hard to arrive at a definitive conclusion. Page 4 of Professor Golombok’s document states:

Findings are presented of a study of families created through surrogacy arrangements. Forty-two surrogacy families were compared with 51 egg-donation families and 80 natural-conception families.

Surely the best studies of family involve far bigger numbers. Did Professor Golombok find it was difficult to do the research? The numbers seem quite small.

Professor Susan Golombok

Yes. The numbers are quite small. It really comes back to the point I made about the need for replication. Of course, there are different ways of studying families. Our approach at the Centre for Family Research, Cambridge, is to do very in-depth longitudinal studies and obtain very in-depth data using many different methods and informants in the family. Other researchers might survey larger numbers of people. We need all these approaches.

Given the in-depth nature and reliability of the measures we used, we would certainly have picked up any moderate differences had they existed. You cannot really make blanket statements about what constitutes a large or small sample; however, for family studies that are as in-depth as ours, you would usually and ideally aim for about 50 families in each group. As it happened with the surrogacy ones, we managed to recruit only 42 within our sampling timeframe. However, the 42 were very representative because we were fortunate in that we were able to collaborate with the UK’s Office for National Statistics, which is where parental orders are registered when the intended parents become the legal parents of the child. On our behalf, the Office for National Statistics approached the families and we had a very high response rate. In some ways, the representativeness of the sample is more important than the number because, with volunteers, you might get only families with an axe to grind or families who are doing particularly well. Those who are not doing well might not want to take part in research. Representativeness is one big plus of the study but I completely acknowledge it is but one study.

The results have been positive but it would be helpful to have more research focusing on larger samples, though then the methods would necessarily be less in-depth.

I hope to come in on the next round because I was impressed by our other two key expert witnesses as well, and the information they had to offer.

My background is that I worked on the launch of the longitudinal Growing up in Ireland study. I am fascinated by the in-depth work Professor Golombok has carried out, the breadth of her research and its findings. I am impressed by her clarification in the last contribution that the cohort is a representative sample based on wider statistics. That information is now on the record, which allays any concerns regarding the sample size.

I was interested to hear that at seven years of age children born through surrogacy were much more advanced in their self-identification awareness than peers and this manifested itself in many cases in behavioural issues which effectively worked themselves out over the next couple of years. Will Professor Golombok elaborate on that?

Professor Susan Golombok

When we found this, we were not sure why it was happening but in looking at good quality studies by colleagues in the Netherlands who work in international adoption, it was interesting to us that they found exactly the same pattern of these children at age seven showing an increase in emotional and behavioural problems. These researchers put it down to the fact that internationally adopted children are aware they are adopted, as is everybody else, because they look different from their adoptive parents. They attributed the increase in problems at this age to having to deal with these issues at a younger age than other children.

In terms of our study, we cannot be definitive about why we found this slight increase. I should state these children were still within the normal range. It was a statistically significant increase compared to unassisted conception families but they were not showing clinical levels of problems. The explanation in relation to international adoption made a lot of sense because the children knew they were born through surrogacy, many were in touch with the surrogate, other people knew, they were being asked questions about it and so on. Given that how one is conceived can be an important part of one's identity and the story of one's life growing up, it seemed to make sense that having to deal with these issues at an earlier age could play into the reasons for this blip at age seven. Interestingly, it was a pattern that was replicated with internationally adopted children. I cannot say for sure it was the reason but, theoretically and drawing on related research, it seemed to make the most sense in trying to understand what was going on.

I thank Professor Golombok for participating. It was an interesting session. We will move on to the other witnesses.

Professor Susan Golombok

Thank you for inviting me.

We have a bit of juggling because we started late. I will go back to Senator Clifford-Lee because she did not get a chance to have her question answered at all, then I will pick up with Senator Ruane, as the next on the list.

Will Dr. Tobin elaborate on the suggestion to delete that part from the assisted human reproduction Bill and have a stand-alone surrogacy Bill?

Dr. Brian Tobin

I will take the two questions. There was one from Senator McGreehan. It was a wonderful, pragmatic question and one I cannot answer today because I am in touch with a colleague in Paris trying to get some accessible information in English about the French adoption procedure with simple adoption. I like what they call it: simple adoption. The average waiting time for a decision is 4.7 months, as noted by the European Court of Human Rights. Hopefully, I can submit information in writing in the weeks ahead as to how that is working in practice.

I appreciate as an academic researcher the arguments in principle against using second-parent adoption as a route to parentage in international surrogacy arrangements. However, putting pragmatism over principle in the case of retrospective recognition of parentage and getting people and children the rights and legal situation they need, I favour a reconsidered type of second-parent adoption, which I hope I have made clear in the briefing document. It strikes me there is no need for second-parent adoption to be the same as joint adoption by strangers. Second-parent adoption throughout Europe always involves a child with a well-established familial bond with the second parent seeking to adopt.

I think I echo some of what Professor Madden was saying when I say I do not think the legislation should go ahead and do what it wants to do in the realm of domestic surrogacy. I think there is a better approach. I have tried as clearly as possible to outline that in the briefing document. I would prefer to see Part 7 deleted because, as Professor O'Mahony said here a couple of weeks ago, the legislation we enact now will regulate this area for a generation. I would rather it did so in a more balanced way. In the UK, the Law Commission, in the report it will publish later this year, will include a stand-alone suggested surrogacy Bill. We should go down a similar route, leaving the 2022 Bill to go ahead and regulate important assisted human reproduction matters and, importantly, set up the assisted human reproduction regulatory authority, AHRRA. I am not talking about a great amount of time, but more time might be needed to get those wanting to forge ahead with a domestic surrogacy regime on board with a pre-conception type of approach to such a regime. For that reason, a stand-alone surrogacy Bill could be excellent and, as was made clear in the submission, the State could fully realise the true potential of the AHRRA in that regard.

I thank Dr. Tobin for elaborating on that. Other guests have said they do not want a stand-alone Bill. They are afraid it will take too long and there too many issues hanging out in limbo. They want to proceed, even if it is not the absolute gold standard. What does Dr. Tobin say to that?

Dr. Brian Tobin

I understand why advocacy groups or parents would want something to proceed-----

Even some academics have said the same.

Dr. Brian Tobin

I disagree with that because we could have a better, more cohesive Bill for both types, namely, domestic and international surrogacy, rather than allowing one Bill to go ahead. Maybe this committee will suggest viable amendments to the Bill but if not, it looks like it will forge ahead and regulate surrogacy for a generation in this country. There is a better way and more time is needed. I do not see the rush. I sat here in 2014 speaking on surrogacy in the Children and Family Relationships Act. The surrogacy provisions were deleted from that legislation before it became an Act. Here we are eight years later and I do not want this to go on for another eight years, but would six or 12 months make a massive difference? I propose in the interim that reconstituting second-parent adoption would involve amendments to adoption legislation, which is not as big a deal as amending the 2022 Bill or a stand-alone surrogacy Bill. There are pragmatic interim or stop-gap measures in the form of my recommendations on second-parent adoption or guardianship until we get the surrogacy Act the State needs.

That would support the children and families currently here in Ireland and in the process.

Dr. Brian Tobin

I would hope so.

Sorry, Senator. I am conscious of the time because we-----

That is okay. I might be able to come in again at the end.

Senator Ruane has not had an opportunity to speak. Senator Ruane, would you like to ask a question?

I thank the witnesses for their presentations. They were brilliant.

I wish to focus on Professor Madden's points in her presentation about the idea of commercial surrogacy and being able to challenge its definition or the belief that commercial surrogacy is, by its very definition, for some reason unethical. From the very beginning of this committee, and having looked at this issue as a woman who has had different lives in respect of socio-economic background and class, living on the one-parent family payment, being a young mother and having no third level education, I have felt at each stage of my life very much able to consent and to make decisions as to what I want to do and do not want to do with my life. I have always been very interested in trying to tease out a little more this conversation and the kind of paternalistic feeling I get when these conversations about women's ability to engage in real, informed consent come up. Could we therefore talk a little about how we begin to challenge that narrative? I think it is an idea rather than a real thing that compensation means exploitation. It is not necessarily true. How do we begin to have those conversations? We have laws on exploitation, coercion and human trafficking to capture when those things happen, but that does not mean we cannot also regulate for surrogacy that is compensated or that it cannot be ethical. Can Professor Madden elaborate a little more on her thoughts on that?

Professor Deirdre Madden

Certainly. It is something I have also been very interested in over the years. I struggle with the idea that the word "commercial" in this context is almost a dirty word and equals exploitation. When we talk about commercial surrogacy, we have to say what we mean. Is it just where a woman is paid? Does it depend on how much she is paid, the socio-economic circumstances of her life or the country in which she lives? What if the payment is described as expenses? What if non-profit agencies are involved? Looking at all the other people involved in facilitation of a surrogacy arrangement, be they lawyers, counsellors, doctors, clinicians or nurses, they are paid for their involvement in this process. There are three different ways of looking at this if we think about the issue of payment. Either the surrogate gets nothing and has to pay for everything herself, which I do not think anybody is suggesting; she receives reimbursement at reasonable expenses and it is up to each jurisdiction to determine how that is calculated based on local economic factors; or she receives vouched expenses plus perhaps a living allowance or a gift to thank her for all she has done to help a childless family. Some surrogates would not even accept such a gift. As long as she is not coerced, induced, manipulated, threatened or tricked into carrying the pregnancy, as long as she is giving fully informed, voluntary consent, I wonder how the payment exploits her. It could be counter-argued-----

I have only a couple of seconds left. I know this is a bit of a stretch, but I am trying to look at the language we use. Say we were to force a situation whereby non-commercial surrogacy was not allowed or deemed unethical or illegal. Could we say the inverse would also be true, that is, that to enforce altruism on somebody in a difficult situation can also be exploitative? That way, the two positions negate each other at the end of the day if we are to balance them out.

Professor Deirdre Madden

Yes. I think I mentioned in my presentation earlier whether, when we think about altruism, it necessarily applies in, for example, family relationships, whereby somebody might be put under subtle or maybe even not-so-subtle pressure to act as a surrogate for a sister, cousin or family friend. That kind of thing can be very pressurising as well. To me, therefore, money is not the issue; it is about whether the person has the capacity - we must presume they do - to enter into this arrangement, knowing fully what they are getting involved in without any threat or coercion, economic, family or otherwise. That, to me, is the most important thing when we think about exploitation rather than the money.

I will revert to the normal rota. Senator McGreehan, I think you had a question for Professor Madden that was not answered earlier.

Following on from what Senator Ruane spoke about, I have a very simple question: is uncompensated surrogacy unethical? Every single person in the process is getting paid: the doctors, the solicitors - everyone. I have four children. It is not easy. Is it unethical to expect a woman to do that, to be all virtuous, all grace and all love and to give all that for someone else just out of the goodness of her heart? Many people use their bodies in many different ways for their professions. I am not talking about sex; I am talking about sportspeople, models and many other people. Is it actually unethical not to pay or to compensate a woman for doing such a tremendous thing?

Professor Deirdre Madden

I agree. I also have four children. It is certainly not an easy role. I see that point and share a lot of those concerns. As I said a moment ago, if everybody else in the process is paid for their time, effort and expertise, it could be argued that not permitting the surrogate to receive payment could be considered to be exploitative and that it downplays and downgrades the very important role she plays in the process by bringing to term a much-wanted pregnancy and bringing a child into existence. It could very easily be considered to be exploitative to expect her to do that and to undertake that reproductive labour for nothing while everybody else is paid for their participation.

I thank both witnesses. I thank Professor Madden for giving us the opportunity to have this discussion. Senator Ruane a number of weeks ago, very early in our meetings, touched on the idea of a paternalistic attitude that women cannot make this decision for themselves because of their socio-economic background or the county in which they live. While I am not ignoring the fact that we need to put in place safeguards, one of the themes that comes across is that this is a matter of safeguards against intermediaries and what they may be up to and how they may exploit the situation for their own profit and that we need to focus on that, not whether or not the surrogate mother is paid, given that, potentially, she is the only person in the entire process who is not paid and we do not consider the actions of others to be unethical and do not challenge the fact that they are paid because we accept their professional role. That would also be consistent with the non-sale of children if we are merely compensating people for their gestational services. That is important, so I really appreciate that it has been raised.

As for intermediaries, Professor Madden's submission sets in place almost guidelines as to how we ensure that a surrogate mother reaches that level of consent personally, and I appreciate that. I do not have a question about that other than to acknowledge it. Professor Madden may wish to elaborate on it.

I thank Dr. Tobin for his document. Both witnesses' submissions are pragmatic. I do depart from Dr. Tobin in his recommendations, as he may have expected I would, in that right now, today, in Dolphin House, in Temple Bar, there are families going into the family court looking for maintenance orders, access orders and so on, where family relationships have broken down and women are trying to get payment support for their children. I can guarantee Mr. Tobin that not one of those mothers in those courts is the mother of a surrogate-born child because she has no rights. She is afraid to go to court in cases of family breakdown because we have no legislation in place that would support her and we have completely abandoned those women and second parents, including those in same-sex couples.

We have abandoned their rights to the child who they have been there for and who they are parent to in the definitions under the Child and Family Relationships Act. We need this urgently. We need it urgently because there may be, for example, cases where a father has an illness that potentially will be fatal, those mothers and their children may be left without.

To revert to the original statement by the Department of Health, they used words like "emotional" to suggest this is an emotional issue. They referred to this as being a small group of people as a reason to carve this out, to kick it down the road and to stick their heads in the sand, rather than dealing with legislating for it. From that perspective, I disagree.

I had better stop speaking or I will not give Dr. Tobin a chance to speak. However, I do appreciate the pragmatism in his submissions.

Dr. Brian Tobin

Could the Senator please clarify her question?

We need to acknowledge that a year longer will be too long for families, in such cases as where a woman cannot sign a consent form and she cannot sign anything to do with a child. Any more kicking this down the road and carving it out is just giving an excuse for what is prohibition by a failure to legislate. This will be a failure to the children of our State.

Dr. Brian Tobin

I fully appreciate the practical consequences of us having no legislation even here today and of kicking it down the road. My suggestion was to try to get Departments on board to give us a domestic surrogacy regime that would help to mitigate people having to go abroad or us having to accept double standards if more people could do it at home.

In the briefing document, I hope I made it clear that where a domestic regime is restrictive and is discouraging, intended parents will continue to go abroad. I cannot see very many people at all wanting to avail of the domestic regime as described in Part 7. That is my take on it. That is where that recommendation is coming from. I promise the Senator that it is well intended.

With respect, I really do appreciate that Dr. Tobin is setting out a pragmatic response to the situation. Both of the witnesses are doing so. I appreciate that that is not his intention. My concern is that there are flaws and gaps that have been left as a result of the Child and Family Relationships Act, which undermine same-sex couples in particular.

On the issue of reciprocal IVF, the domestic arrangements proposal is deeply flawed. We have had several people before the committee. No doubt, when this legislation proceeds to Committee Stage, that will become apparent. It is shocking that we had the report in 2005, in 2014 we had the Child and Family Relationships Act and in 2017 we had the original AHR legislation. Now we are in 2022. We cannot afford to have this postponed further.

Dr. Brian Tobin

I entirely agree. I found it surprising that Part 7 differed in very little respect from Part 6 in the general scheme of the 2017 Bill. These were five years apart but there was very little difference between them. I found that shocking. Like the Senator, I want to see all these practical concerns resolved. Even in the recommendations about second-parent adoption or guardianship, I fully appreciate that they are not ideal, but let us try to get people the rights they need to care for their children in order that they can get what they need for their children and can be recognised as the parents of the children who are in the State and who are being raised by intended parents.

Is the term “second-parent adoption” semantics for a bespoke parental order?

I am conscious of time.

Dr. Brian Tobin

With the involvement of the Adoption Authority of Ireland, not really. They are different processes. There are court process to that as well. The Adoption Authority of Ireland would be involved, too. I only recommend it retrospectively to sort out people who are in a pickle at present. Going forward, we probably need to consider some sort of parental order system for domestic and international surrogacy. I know it has been recommended for domestic surrogacy, but let us try to get everyone involved.

I am going to move on now because Deputy Costello has not asked any questions yet and we are coming up to the clock.

I will try to be quick. One of the issues that stands out from what Professor Madden said is that double standards are not always necessarily pejorative. If we have different circumstances, it is understandable that different legal conditions may apply. Ultimately, however, and I do not think anyone would disagree here, the committee needs to ensure there are no double standards for children at the end of the day.

The words that one of the witnesses spoke before the committee last week are still in my head. They said that the best thing we can do for children is to support the certainty of parents and to prevent undermining parents, in order that they can parent effectively. That is the best thing we can do to support children. I apologise that I have been thinking out loud here a little. We need to ensure that, even if we have separate processes, ultimately the children will have the same outcome at the end and they are not affected and discriminated against in any way at all.

I wanted to explore a question with Professor Madden, who mentioned in a pre-birth assessment and a parenting order. I do not remember the phrase she used but she referred to the assignment of parentage at birth or very shortly afterwards. Could Professor Madden talk us through that? We had some conversations last week about the benefits of legal certainty. Equally, there was concern that this would not allow for the test of the best interests of the child and that any orders in relation to parentage should be done post birth. From hearing the witnesses who have been before the many committee meetings, there seems to be a divide in the pre-birth and post-birth issue. Could Professor Madden talk us through that? Dr. Tobin’s comments on that issue are welcome as well.

Professor Deirdre Madden

I thank the Deputy. My comments on pre-birth scrutiny and parental order flow from the Commission on Assisted Human Reproduction’s recommendations. They seem like a lifetime ago. They were published in 2005. I chaired the subgroup of the commission on donor programmes and surrogacy. The commission recommended that the child who was born through surrogacy should be presumed to be that of the intended parents and that this was most in keeping with and consistent with the best interests of the child.

The pre-birth scrutiny of domestic surrogacy arrangements, or all surrogacy arrangements, would be to ensure that in advance of birth, all the legislative requirements have been met. It is difficult to carry out a test of the best interests of the child either during a pregnancy or after a pregnancy. We are used to best interest tests in the context of adoption where, for example, there is a child in existence for whom we are trying to find the best environment to live.

However, for a child who has not been born or who has just been born, what does it mean when we talk about the best interests of the child? Will we have some sort of fitness-to-parent test for couples who have chosen this route by which to create their family? We need to be very careful about any such suggestion because it could be potentially discriminatory against people who have backgrounds that may be seen as less than desirable. I would not want to see any prejudicial criteria in existence in that respect. The pre-birth scrutiny therefore would be to make sure that the woman, for example, has had the opportunity to take independent legal advice.

There would also be the other criteria, which I mentioned in my presentation, namely, that she is given fully informed consent and so on. Everything should be aligned as regards the legislation. At the moment of birth, the parentage should be certain, so that the intended parents are the legal parents of the child and do not have to wait for a month, six months or 12 months to have that clarity. When we think about the best interests of the child, there might be medical circumstances that might arise whereby a consent would have to be given for medical treatment of a child. The child would at that time be living with the intended parents but they would not have any legal rights to give consent for medical treatment. There are therefore many practical consequences involved in the kind of parental order that has been suggested in the Bill, which I would certainly not be in favour of.

Many of my questions have been asked already. I am also of the firm belief that the legislation really needs to go through this time. There has been such uncertainty over the past few years and for the children and families, we need to give stability and certainty. When speaking with Professor Susan Golombok, I felt the research on parenting and child adjustment in surrogacy families was highly positive. We have had families before us and these are really heartbreaking stories. The parents are so dedicated to the children that we must move on this now. It is important we get a balance but this legislation must go through this time.

I have some questions for Professor Madden. Her statement was excellent. She feels the best way forward for Ireland is to ensure we have modern evidence-based surrogacy legislation domestically, so fewer people go abroad for surrogacy. Will she explain that a bit more for me? Another important part of her statement argued that we must consider how to best protect all those involved to the greatest degree possible, while recognising that we cannot regulate what happens in other countries.

This is important and we have all been touched by the witnesses we have heard from over the past few weeks. Again, it is important that the legislation goes through as soon as possible.

Professor Deirdre Madden

I will be brief as I know we are up against the clock. My conclusion is we cannot and should not ignore the reality of international surrogacy. We cannot require the laws of other countries where surrogacy takes place to be the same as ours. We must prioritise the rights and welfare of children, the surrogate but also the intended parents, because sometimes their interests and potential vulnerabilities are not prioritised in the same way. We speak much about protection of surrogates but we must also have in mind the well-being of intended parents, who may have struggled for years to have a family and prepared in every way possible to become parents. Their interests also deserve protection.

The best solution to my mind is to try to ensure the domestic system we have encourages people to stay here and have their surrogacy arrangement done here. At the same time, we must recognise that this will not apply to everybody. Some parents may want the surrogate to be somebody of the same ethnicity as them, for example, and they may wish for the child to be born in their country of origin. Of course, they could have a family member or friend living abroad who is willing to be a surrogate for them. Just because the process takes place internationally does not necessarily mean it is commercial in the sense we have been talking about here.

The mechanism by which we do something could be a pre-approval process by a regulator on the basis of an approved list of countries, perhaps, where the regulator has done due diligence, for example, and is satisfied the legal protections are as close as they are to those in Ireland. Once all the legal criteria are satisfied in the country where the child is born - this may require a judicial process in that country - and the parents return to Ireland with the child, recognition of parentage could be given via court order. I am not sure if that answers the Deputy's question.

It does. I thank Professor Madden.

I was not here when the witnesses gave their opening contributions but I have read Dr. Tobin's and Professor Madden's statements. Dr. Tobin states the 2022 Bill provides for altruistic domestic surrogacy but any amendment to this draft legislation would have to be willing to embrace commercial surrogacy arrangements and that is the first inconsistency the State will have to be willing to accept in principle.

I have a couple of questions. Does Dr. Tobin have any objection, in principle, to commercial surrogacy and if not, why not? Does he believe Irish law should formally recognise commercial surrogacy here and abroad? Why do most countries ban commercial surrogacy? Does he share the concerns of the UN special rapporteur on sale and sexual exploitation of children that commercial surrogacy can easily amount to the sale of children and therefore, the practice cannot be in their best interest, by definition?

Towards the end of his submission, Dr. Tobin indicates that in the case of male same-sex parents, the birth certificate proposed would not record the child's mother, and thus the child would have no legal mother at birth. Every child has a mother, however, so is Dr. Tobin proposing the birth certificates do not properly reflect the reality of the child's parentage?

Dr. Brian Tobin

I will take those in reverse order, if that is okay.

Dr. Brian Tobin

The birth certificate recommendation towards the end of the briefing document refers to the domestic surrogacy model I am proposing. It should be remembered that we are proposing to set up a national surrogacy register and that, to my mind, is where the surrogate's details should be registered and made available to the child at the age of 16, as it is proposed in the 2022 Bill. The birth certificate should, where possible, reflect intended parentage, whether is opposite-sex intended parents or same-sex intended parents, but with the surrogate's information placed in the necessary repository, which is the national surrogacy register, NSR.

I hope it is clear from the briefing document - I do not know if the Senator had time to read it - that I am very much aware of the UN special rapporteur's recommendations on sale of children. In making recommendations I very much try to avoid not complying with her recommendations. She tells us things like contractual arrangements dealing with legal and physical transfer of parentage, with no right to object for the surrogate are massively problematic. I respect that and I totally agree with her position, although it does, to some extent, fetter what we can do in legislation. It can be difficult, practically, to provide for the surrogate's right to object if we go ahead with the recommendation of some activists and academics for pre-birth court orders for the domestic model, for example. I absolutely do not agree with that. As I said in my statement, the AHRRA would be an appropriate body for this, and there is evidence for that as well.

One of the reasons I recommended to the committee to take time with this is that I am au fait with ongoing law reform projects in both the UK and New Zealand. They have been going on in the UK since 2017. The committee has been given a very short timeframe to do something that is so complex.

Dr. Brian Tobin

I commend the members on everything they are doing. My recommendation on taking time and getting Departments on board really comes from a good place.

There is the question of the potential payment of surrogates and I keep an open mind on this. The UK's Law Commission has put this out in its consultation paper and I am waiting to see what it comes back with. I do not believe it will come back in favour of letting the market set the payment for surrogates and I am not in favour of that fully commercial model. There could potentially be a more compensated model. The briefing document considered Greece and the UK and that is what altruistic surrogacy seems to be, largely, in practice. I am certainly keeping an open mind as to the potential for compensating surrogates.

Dr. Tobin's views seem to be totally different from others. We had Mr. Gearóid Kenny Moore from Irish Gay Dads, along with Mr. Shane Lennon, before us and they were adamant that they had no problem with the birth mother being on the birth certificate.

Dr. Brian Tobin

I watched the debate and the Senator may correct me if I am wrong. I believe they said it was required by the law of the jurisdiction in which the birth took place. I do not believe they said they had no problem but rather that it was a requirement.

I think they did.

They clarified it later. When they elaborated, they said they were okay with it, given it was the law of the jurisdiction. There was a clarification of the comment.

Dr. Brian Tobin


I thank Dr. Tobin. Professor Madden has answered some of the questions so I will not bother her again.

There are two more members seeking to ask questions, which I will allow. I know we have gone over a little in this session but it has been warranted and the discussion is really interesting.

I will be brief as time is of the essence in this session. I thank Professor Madden and Dr. Tobin for coming to the meeting to share their expertise with us. Dr. Tobin said we have the tough task of making our deliberations within a tight period of time. We can only do that because of experts like him, so I thank him. I was interested to hear both witnesses talk about the need for legislation and regulation for international surrogacy. That is a key point we have heard repeatedly from experts in this field. That is our remit, so it is encouraging to hear that again.

Professor Madden spoke a little about the UK experience and about something I have raised in this committee previously, which is the need for as much as possible to be done in advance of the birth. I know that is difficult when one is dealing with different countries with different rules and regulations, but I fully agree with her on that premise. Dr. Tobin spoke about the Verona Principles, which was very interesting. I did a lot of work with the Adoption Authority of Ireland a number of years ago and a question I have put to others previously is whether we should be looking at having bilateral agreements with countries where the Verona Principles are applied. If we do, is that practically possible, given that, as Professor Madden said, we cannot control whether or how another country regulates? That is the challenging circumstance in which we are operating. I would value the input of both witnesses on that question. What do they think the ideal would be in terms of how we can deal with the countries that do this best?

Professor Deirdre Madden

Ideally, what we would all like to see is some form of international consensus on this, an international convention that would ensure a uniform and consistent approach across all countries. That is ideally what we would like, perhaps, but it is a long way off. I spoke in my presentation about the fact we cannot require or expect countries in which surrogacy takes place to have the same legal provisions as ours. That is simply a fact. What I would like to see is that the regulatory system we have here would be satisfied that, wherever the surrogacy takes place, the law and practice - practice has to follow the law - in the relevant country provide as close as possible to an equivalency of the protection we have in Ireland. It will not be exactly the same because the legislation in both countries will not mirror each other, but for all practical purposes, the most important criteria we would like to see in any legal regime relate to the protection of the surrogate, making sure she is informed and has independent legal advice and ensuring she has proper psychological screening and support, medical assistance and the like. If those are the things we agree are the most important to ensure she is protected, the regulator would have to do due diligence to make sure that wherever the surrogacy is taking place provides that same level of protection. The welfare of children would also have to form part of that to make sure it is at least equivalent to what would be applicable here. For me, once all those legal criteria are satisfied in that country and the parents return to Ireland with the child, recognition of parentage in Ireland should flow from that. That is the system I would like to see.

Dr. Brian Tobin

As I said earlier, I do not believe bilateral agreements are easy to achieve because jurisdictions differ so greatly. Few jurisdictions would fully qualify or come close in terms of law and practice to what is proposed in Ireland under the 2022 Bill.

Regarding the Verona Principles, I was involved in a debate in London on those principles over a weekend and even trying to hammer out agreement in that room among experts from the UK and Ireland was difficult. That is why the principles are quite broad as well. They are wonderful guiding principles that could lead to something like an international treaty in the area, but states differ from what the principles allow in terms of latitude also. Like Professor Madden, I would love if there were an international consensus in the form of a treaty. For the moment, we have to stick by principle No. 10 in the Verona Principles and have post-birth best interests of the child determinations whenever an international surrogacy takes place.

I thank our guests for attending the meeting and engaging with us. We could have done with a lot more time because it was fascinating, but the documentation they have provided will give us a great deal of food for thought.

I propose to suspend the meeting for a few minutes to allow our next witnesses to connect online.

Sitting suspended at 11.16 a.m. and resumed at 11.24 a.m.