Joint Committee on Children, Equality, Disability, Integration and Youth díospóireacht -
Tuesday, 1 Feb 2022

Rights of the Child in respect of Domestic and International Surrogacy: Discussion

Chairman

Before we begin, I will go through some housekeeping matters. If members or witnesses who are participating remotely experience any sound or technical issues, they should let us know through the chat function. Otherwise, we will proceed. I wish to advise everybody that as it is a public meeting the chat function on MS Teams should only be used to advise participants of any technical issues or urgent matters and not used to make general comments or statements.

I remind members who are participating remotely to keep their device on mute until they are invited to speak. When they are speaking I ask them to have their camera switched on, where possible, and to be mindful that we are in public session. In addition, I remind members of the constitutional requirements that members must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. I ask everyone participating in the committee room to be vigilant with regard to Covid-19.

Today's meeting is on the rights of the child in respect of domestic and international surrogacy. I welcome all our witnesses here today to discuss this very important topic. The format of the meeting will be an opening statement from each group and they will be followed by questions and answers with members. Each member has an individual question-and-answer slot of approximately five minutes. The witnesses, who are addressing the committee remotely from outside Leinster House, are Professor Conor O'Mahony, special rapporteur for child protection; Dr. Lydia Bracken, University of Limerick; Ms Ciara Merrigan, chairperson, and Ms Cathy Wheatley, spokesperson, of Irish Families Through Surrogacy, IFTS; and Ms Elaine Cohalan, chairperson, and Mr. Gearóid Kenny Moore, director, of Equality for Children. We will start with Professor O'Mahony, who will be followed by Dr. Bracken, Ms Merrigan and Ms Cohalan. Before I invite them to give their opening statements I must advise them about parliamentary privilege. As all the witnesses are appearing before the committee virtually, I must point out there is uncertainty if parliamentary privilege will apply to their evidence from a location outside of the parliamentary precincts of Leinster House. Therefore, if they are directed by me to cease giving evidence on a particular matter, it is imperative that they comply with any such direction. Each speaker is allocated three minutes speaking time and then there will be questions and answers with members.

I invite Professor O'Mahony to give his opening statement.

Professor Conor O'Mahony

Irish law has a long way to go to vindicate fully the rights of children born as a result of donor-assisted human reproduction or surrogacy. At present, we have laws allowing for parentage to be allocated in some cases involving donor eggs or donor sperm, but not all families benefit from this legislation. Meanwhile, surrogacy is entirely unregulated in Irish law. The result is that children are born and raised in families in which one parent is treated as a legal stranger to the child. This fails to recognise adequately the children's right to family life and their right to identity in some cases of donor-assisted human reproduction and entirely ignores those rights in the case of surrogacy. This is contrary to both the best interests of children and the principle of non-discrimination. In 2020, the Government asked me, as special rapporteur for child protection, to examine the implications of donor-assisted human reproduction and surrogacy for the rights and best interests of children. My report was published last April and my input today is based on that report.

The question of whether to regulate or prohibit surrogacy is a subject on which there are strong and legitimately held opinions and on which there is little international consensus. Nonetheless, from the point of view of children's rights, certain principles are beginning to become clear. The unavoidable reality is that children will continue to be born following international surrogacy arrangements, irrespective of what Irish law provides, and to be cared for by parents who may have no legal connection with those children. In the face of this reality, the European Court of Human Rights has held that states that are party to the European Convention on Human Rights must provide a pathway to legal recognition of family relationships arising from international surrogacy arrangements. Ireland is bound by this obligation.

My report recommends that the Oireachtas should enact comprehensive legislation regulating surrogacy at the earliest opportunity. This legislation should incentivise reliance on domestic surrogacy arrangements by adopting a more streamlined and less burdensome framework for domestic rather than international arrangements. That said, even if domestic surrogacy is regulated there will always be families who will opt for international arrangements, whether due to the availability of surrogates or other issues. It is unsustainable to allow these families to remain in the legal twilight zone they currently inhabit. It is therefore imperative that any legislation enacted in this area also provides a clear pathway to recognition of relationships arising from international surrogacy.

My report makes a series of recommendations which are aimed at harmonising Irish law with children’s rights principles deriving from our international legal obligations. These recommendations include closing gaps in existing laws governing parentage in donor-assisted human reproduction procedures; for domestic surrogacy, that provision be made for a court application prior to the conception of the child that would combine advance authorisation of the arrangement with a pre-birth transfer of parentage; for international surrogacy, the legislation should provide for intending parents to apply to the High Court for parentage and parental responsibility, as well as for a grant of nationality and citizenship to the child, subject to satisfying a range of prescribed criteria, with such applications to be made before the child is brought into the jurisdiction; that retrospective declarations of parentage be available in respect of children born through surrogacy arrangements which took place before the legislation comes into effect; and that the legislation governing donor-assisted human reproduction and surrogacy would ensure that the right to identity be protected for all children born through such procedures and can be exercised by children while they are still children, with identifying information being made available to parents at any point after the child's birth and directly to children from the age of 12 years onwards.

All these points were addressed in much more detail in my report and I am happy to discuss all this with the members throughout today's proceedings.

Dr. Lydia Bracken

I thank the committee for the opportunity to share my views on the rights of the child in respect of domestic and international surrogacy. Based on the research that I have conducted as a legal academic, it is my view that the absence of legislation to specifically regulate surrogacy in Ireland is contrary to the best interests of children who are born through this process. The central premise of my statement is that surrogacy must be subject to specific legal regulation in order to comply with the best interests principle and that law, policy and practice in the area must be shaped by children’s rights and research on children’s experiences. Among other things, this regulation must ensure that the intending parents who care for the child from birth can both be recognised as legal parents; that the child’s right to identity is safeguarded; and that the child does not experience discrimination due to the circumstances of the child's conception.

The current situation is that without regulation, children born through surrogacy are disadvantaged in a range of areas as they do not have a legal relationship with one of their parents, either the intending mother or intending father. To address these issues, there is a need to legislate for future surrogacy arrangements, but the law must also provide a mechanism to recognise the intended legal parentage of children who have already been born through surrogacy. This could be achieved in a manner similar to the provisions of our existing law that allow for the recognition of parentage in cases of donor-assisted human reproduction that occurred prior to commencement of Parts 2 and 3 of the Children and Family Relationships Act 2015.

As it is currently drafted, the general scheme of the assisted human reproduction Bill 2017 proposes to prohibit international surrogacy and to criminalise intending parents who engage in it. It is my view that prohibiting international surrogacy will not protect children’s rights and criminalising intending parents would only exacerbate the issues. The difficulties that arise as a result of prohibition are evident in the jurisprudence of the European Court of Human Rights, which has heard a number of cases on this point. The case law of the court and an advisory opinion issued in 2019 indicate that legal recognition of certain parent-child relationships must be possible following surrogacy, even in countries that prohibit the practice, in order to protect the child's rights. Of course, assessment of the best interests of the child must take place on an individualised basis, taking into account all relevant factors.

However, ignoring the reality of international surrogacy by not legislating for it leaves the door open to children’s rights violations.

While today’s discussion focuses on children’s rights in surrogacy, it is also important to note that Ireland’s existing legislation on donor-assisted human reproduction, that is, the Children and Family Relationships Act 2015, falls short of children’s rights standards in a number of areas. For example, a number of pathways to parentage are omitted from the legislation, raising issues for the child’s right to family life, and there are also issues with the process through which the right to identity can be vindicated for the child. The assisted human reproduction Bill provides an opportunity to enact inclusive and comprehensive legislation to address the current gaps in Irish law and so I urge the committee to consider the issues in this broader context to ensure consistency across all assisted human reproduction legislation. I thank the committee.

Ms Ciara Merrigan

I thank the committee for having us here today. Irish Families Through Surrogacy is a group of Irish parents who are campaigning for our children to have the protection and benefits of a legally recognised relationship with both parents. We are predominantly a group of Irish mothers who have already undertaken the surrogacy process to motherhood for many medical reasons such as cancer, endometriosis, cystic fibrosis, post-organ transplant, MRKH, multiple miscarriages, congenital heart conditions, stillbirth and unexplained infertility.

We are the voice of our children. We call upon our Government to act as a matter of urgency on assisted human reproduction legislation, with its primary goal to protect the best interests and welfare of our children. We need a positive, supportive and expedited process to protect the dignity and respect of all parties involved in the surrogacy process, namely, the child, the surrogate and the intended parents. Our children deserve equal fundamental rights and protection to those afforded to any other Irish child under Irish law. Currently, Irish legislation recognises the woman who gave birth as the legal mother of a child. The European Court of Human Rights has tasked its member states to find a pathway to secure legal recognition of family relationships. There can currently be a long wait until our children have a legally recognised relationship with their father within the State. There is variation within the legal process and this can take many months or even years. Intended mothers can only apply for guardianship of their children with permission of the father. This expires once our children reach 18. As we all know, parenting does not end at 18. Our children need a legal relationship with us throughout their lives, not just for childhood.

This is how the lack of legislation affects our children on a daily basis. As newborns, our children were unable to be legally accompanied by us, their mothers, for their vaccinations. If our children are hospitalised, we legally cannot give medical consent for their care. We cannot apply for first passports or sign consent to enrol them into crèche or school. We cannot open bank accounts for our children or travel abroad with them without their father’s permission. Effectively, our children only have one parent who can provide protection and stability. We worry that their awareness that “we’re not really their mothers" in Irish law will affect their future sense of identity and well-being and this will open them up to ridicule and bullying on the school playground in years to come.

Our children were created by us, albeit in a non-traditional manner. We are their constant and their advocates. They have no parents, no mammy or daddy, other than us. Our children’s needs are paramount. They need the stability and certainty of having the benefit of two legally recognised intended parents. They deserve the same access to the constitutional rights and equalities of all other children in society. As set out in the Constitution our children have “natural and imprescriptible rights” that the State should by its laws “protect and vindicate".

Ms Elaine Cohalan

I thank the committee for the opportunity to give our input today. In Ireland, the majority of children born into LGBTQ+ families are prevented from having a legal parent-child relationship with both of their parents. The legal protections, security and status that come from a legal-parent child relationship are not available to these children. Children of the majority of LGBTQ+ parents are therefore not currently treated equally by the State. Equality for Children, EFC, was formed in 2019 by a group of LGBTQ+ parents and allies with the sole purpose of righting this wrong. We are a not-for-profit, volunteer-led organisation and currently represent 132 LGBTQ+ families.

Our guiding principle is that it is not equal unless it includes everyone. We believe that, regardless of conception method, no child should be left behind or outside of the law when it comes to their fundamental rights to family life, equality before the law, social security, status, and protection by the State. Thousands of children in Ireland are living in vulnerable, precarious situations simply because of how they were conceived. All same-sex couples who want to have children require assisted human reproduction or assisted pregnancy to conceive a child. The CSO reported in 2016 that there were over 6,000 same-sex cohabiting couples in Ireland and between 2016 and 2020 there were 3,433 same-sex marriages in Ireland.

This is not a marginal issue. The lack of legislation in this area affects many other families, including families where a parent experiences infertility or has a disability or medical condition that prevents them from safely conceiving or carrying a child.

Working together with partners across these stakeholder groups, we have published a position paper outlining six key recommendations that we believe will address the inequalities that children born through assisted human reproduction, including surrogacy, experience. These recommendations are outlined in our submission and include that the recommendations from the Joint Committee on Health are addressed in upcoming legislation. and that all of the recommendations outlined in Professor O’Mahony's report are adopted in that legislation. Today, we will outline the significant negative impact that lack of legislation in this area has on the lives of ours and other children born into LGBTQ+ families in Ireland. Gabhaim buíochas leis an gcoiste.

Senator Lynn Ruane

I thank everyone for their contribution. It is an important issue and one which I care about but am still learning about. I hope my questions are suitable and allow us to have a helpful conversation. My questions are geared towards Professor O'Mahony and Dr. Bracken. They are more legal questions about understanding how to move forward with the legal framework. I feel I am coming from a deficit of understanding but I hope the questions are pointing in the right direction to get closer to understanding the issue. Apologies if they are not.

Ms Merrigan mentioned the constitutional rights of children, their access to them, how important they are and how the legal framework we create will allow kids and families to access those rights. Are there any other constitutional legal barriers to creating the legal framework to do that? There is the right to identity and the fact that in Irish legislation it is the process of giving birth that is deemed to determine the legal mother. Is there any constitutional aspect preventing us getting to that point in the upcoming legislation?

Professor Conor O'Mahony

From the constitutional perspective, the quick answer is "No". This issue was before the Supreme Court eight years ago in the case of M.R v. An tÁrd Chláraitheoir. The wording used by the Supreme Court in considering its regulation of assisted human reproduction and surrogacy was that it is quintessentially a matter for the Oireachtas to decide how best to regulate that issue and balance the various interests and rights and play in such procedures. That judgment clearly signals that the courts do not want to step in and draw bright lines about what can or cannot be done. The courts are saying it is a sensitive, difficult policy choice to be made and, because of that, it is more appropriately made by the people's elected representatives in the Oireachtas. The likelihood of laws in this area being struck down as unconstitutional is slim based on that decision, because the courts see it as a role of the Oireachtas to fill in the blanks we currently have.

Senator Lynn Ruane

Leading on from that question, there is no situation where families will begin to be considered differently within the legislation.

If we cannot legislate for international surrogacy, what does that look like for some families? If we can create a framework here for domestic surrogacy, will that begin to cause complications for anybody who seeks international surrogacy in terms of being able to access the same laws under the legislation that will be drafted or will people be treated differently, which is not what somebody would want to see?

Professor Conor O'Mahony

That is a good question. Dr. Bracken might also want to respond to it. Domestic and international surrogacy give rise to different considerations and different risks arise. Ideally, what one would want to create is a pathway that gets people to the same place, which is full recognition of family relationships, full parentage for the intending parents and full protection for the right to identity wherever that is possible. One would want to get them to the same place, whether it is a domestic or international framework. There are different issues and risks that arise in the international framework relative to a domestic framework. It is more complicated and there are more moving parts. Suddenly there would be issues around the interaction between Irish law and the law of another state, issues around what rules are in place in that other state governing payments, for example, to the surrogate mother and various other considerations like that. It is probably not as simple as just taking exactly the same process that one might operate in a domestic context and saying that could work perfectly for international cases as well because it is a different process. The recommendations in my report were aimed at trying to get people to the same place but adding in some additional steps that would provide those additional safeguards that one would need to deal with those extra considerations and risks I mentioned but also providing some degree of a safety net. Some of our existing laws on donor-assisted human reproduction provide for a situation where there is a pathway and if one stays on it one would get everything but if one deviates from it one would get nothing. Part of what I was trying to achieve in the report recommendations was to set out our ideal pathway where one would get everything and everybody's rights are protected but also providing for a situation where some people, for whatever reason, deviate slightly from that pathway and it would not be a case of saying that person does not qualify for parentage and we would not give that person any recognition whatsoever. The child has already been born and that appears to be a disproportionate response in the event that somebody has deviated slightly. The recommendations in the report were about stating here is where we want to get the person, here is best practice and we will try to funnel cases this way, but here also is a safety net potentially of guardianship rather parentage, for example, for cases where people have not ticked all the boxes but the court is still satisfied that is the best outcome for the child.

Senator Lynn Ruane

I thank Professor O'Mahony for that response. My final question is for Dr. Bracken. She mentioned in her contribution the Children and Family Relationships Act 2015 and how it falls short in terms of children's rights standards. She mentioned that a number of pathways to parentage are omitted from that legislation. Could she elaborate on that?

Dr. Lydia Bracken

Absolutely. I thank the Senator for her question. What I was referring to in my opening statement is that there is a handful of pathways that are very clearly omitted form the legislation. In particular, non-clinical donor-assisted human reproduction procedures currently fall outside the framework for parentage that is created by the 2015 Act. Similarly, the legislation does not cover donor-assisted human reproduction procedures that take place in another country. If one travels to another country to engage in donor-assisted human reproduction, one would not be subject to the same parentage provisions once one returns to the country. Within the legislation there is a provision which would allow for parentage to be allocated to an intended parent who is not currently recognised as a parent in a situation where the child was conceived prior to commencement of the legislation, that is, prior to 4 May 2020. In that situation, if a known donor had been used then, again, the procedure is not available to that family. In that way, those pathways are omitted from the legislation despite the fact that those pathways are the reality of life for many families within the country. It raises children’s rights issues in terms of the child’s right to family life and, in particular, having a legal relationship with the other non-legal parent who the law does not currently recognise in any capacity as having legal rights and responsibilities towards the child. That is an area where, if we are introducing new legislation on assisted human reproduction, we should also be fixing our existing legislation to ensure the same children’s rights standards will apply throughout.

Senator Lynn Ruane

Great. I thank Dr. Bracken for that.

Chairman

I will move on to Deputy Bacik.

Deputy Ivana Bacik

I thank all the witnesses for those helpful and insightful contributions. It is very important to get the legal perspectives and to hear the experiences of those families most directly affected. I was glad to support Equality for Children, which co-hosted the event outside Leinster House in November with Irish Families Through Surrogacy. It was good to meet the witnesses at that time and since then.

What we have heard today is that this is a deeply complex area, that the current lack of regulation is simply unsustainable and it is leaving many families simply without recognition or protection in law. Therefore, we have to change it and we have to legislate. I commend Professor O'Mahony and Dr. Bracken on setting out so clearly what needs to be done. I have read Professor O'Mahony's report from 2020. I was a member of the justice committee during the period from 2011 to 2016 when we tried to legislate on this area. In the end, as the witnesses will be aware, the Children and Family Relationships Act came out of that process but it did not regulate surrogacy because there were simply too many complex issues for us to be able to get agreement or consensus on prior to the holding of the marriage equality referendum. Time was against us at that point but it has left this legal vacuum. I am conscious there will be an Oireachtas special committee on international surrogacy .

I wanted to raise particularly with Professor O'Mahony and Dr. Bracken but also with Ms Merrigan and Ms Cohalan and their groups the key issues we have found the hardest to navigate in law. How do we deal with those? First, there is the distinction between altruistic and commercial surrogacy. It is much easier to provide for altruistic domestic surrogacy but much more complex if we try to create a framework to recognise international and commercial surrogacy. How do we do that in such a way that we are protecting not only the rights of children, which are crucial and the witnesses have addressed that, but the rights of women, particularly women in developing countries who may be very much open to exploitation where there is not a proper regulatory framework? That is the real challenge with international surrogacy. I am conscious that with adoption we have the Hague Conventions but no equivalent for surrogacy. I would love to hear the witnesses' views on that.

The other point we had difficultly with was how to provide for sanction for those who do not use the frameworks that are provided for in law. To penalise parents is to penalise children. That was a real issue. It is a really difficult issue in drafting surrogacy legislation. These are issues that have been discussed previously. The special committee on international surrogacy will be dealing with some of these issues but these are some of the crucial questions.

I commend the witnesses and note we are all conscious there are children and families currently in Ireland who do not have legal recognition, status or protections and we need to sort that out. It is incumbent on us in this Oireachtas term to do so. That is for sure. I agree we need to regulate not only domestic but international surrogacy because that is the reality for many people. With that in mind, the witnesses might comment on how we address those very tricky issues.

Chairman

I very much thank the Deputy for that contribution. I will call each group. We will start with Professor O'Mahony, followed by Dr. Bracken and then I will bring in Ms Merrigan or Ms Wheatley, followed by Ms Cohalan or Mr. Kenny, whoever from each group would like to answer.

Professor Conor O'Mahony

I will address Deputy Bacik's second point on the sanctions question first because it follows on very directly from the point I made in response to Senator Ruane's question. My recommendation was that to try to avoid that situation as we do not want to penalise the children, as the Deputy said, but we want to incentivise the very best practice with the parents. If people are going to engage in international surrogacy arrangements and we are going to recognise those, we want them to be ones we are comfortable with as a country and that comply with the standards which we find acceptable.

That is why the recommendation in the report is for a kind of two-tier situation in which there would be parentage and guardianship, which are different legal statuses. Parentage is what people ultimately want. It is the gold standard most people are seeking when they enter these arrangements. We recommend that, where the arrangement complies with all of the standards and various other criteria and where we are happy that the child's rights, for example, the right to identity, are fully protected, full parentage status would be available. However, the use of an anonymous donor, for example, which means by definition that the right to identity cannot be protected, deviates from the gold standard we are trying to set. The sanction, as it were, would be to say that parentage is now off the table. People who do not comply with the gold standard would not be eligible for full parentage. However, we do not want to penalise such people's children by making them legal strangers so guardianship would still be available from birth. Guardianship is available at the moment but only after a wait of two to three years, depending on the circumstances. Guardianship would be available from birth but parentage would not be available. In that way, legal recognition could still be provided and people could still be given the right to make decisions for their child including consenting to medical treatment, applying for passports and all of those practical, day-to-day issues while still providing a very strong incentive for people to comply with the highest standards as that is what is required to get parentage, which is ultimately what people want.

The question of commercial versus altruistic arrangements is very complicated. There is no question about that. Some people may look at the recommendation in the report in which I say there should only be altruistic surrogacy domestically and wonder why I did not replicate that recommendation for international surrogacy. The rationale is simple. On the one hand, we have obligations under the UN Convention on the Rights of the Child and the UN special rapporteur on the sale and sexual exploitation of children has expressed concerns about aspects of commercial surrogacy. Much of that material suggests that we would best comply with that framework in our domestic laws and in what we can regulate here in this country by going for altruistic surrogacy only.

At the same time, we cannot legislate for what happens in other countries. If Ukraine or California wants to allow commercial surrogacy, we cannot stop that. If Irish couples are going to go to these places and come back to Ireland with children born as a result of those commercial surrogacy arrangements, we need to figure out how to deal with that in a way that avoids all of the problems that have been discussed today. We need to be conscious of the risk of exploitation and that this may amount to the sale of children. The report recommends that this be dealt with by requiring a High Court application. This means the court would have to be satisfied that regulation in the jurisdiction in question is such that it ensures the arrangement does not amount to the sale of children, there was genuine consent on the part of the surrogate mother and so on. The court would have to satisfy itself of that before it would grant an order recognising the relationships deriving from that arrangement. In doing that, we can construct our laws in a way that tries to direct people towards countries whose frameworks are compatible with ours. People would be on notice that, if they go to countries where things are looser, the High Court might not be satisfied that the standards have been met.

Dr. Lydia Bracken

I thank the Senator for the question. I will start with the point on commercial surrogacy. A very careful and nuanced discussion on commercial surrogacy is needed to begin with because it raises many different issues, as was mentioned. First, we need to agree on what we mean when we talk about commercial surrogacy because, when we look around the world, we see that practices that one country might regard as purely altruistic might be regarded by another as commercial. That is the very first thing we must do if we are going to talk about commercial surrogacy. A useful starting point before we even get to that stage is to decide how to ensure that surrogacy is ethical. How do we ensure that the human rights of all stakeholders have been protected in the surrogacy arrangement? That comes down to safeguards to ensure that free and informed advice has been given, that there is a balance of power between all parties and, very importantly, that the rights of the child have been upheld throughout the process. It is more useful to focus on those aspects first and to decide what we mean by ethical surrogacy and then to get into the conversation on what we mean by commercial surrogacy and whether those other aspects can be safeguarded in whatever type of process we are talking about. Our starting point needs to be a focus on whether the process is ethical and how to ensure that it is.

With regard to the point on sanctions, I fully agree with the points Professor O'Mahony made on awarding guardianship instead of parentage in certain circumstances. The points made in the report balance the interests of all of the stakeholders in the process and provide us with something of a compromise that allows us not to penalise parents in a way that ultimately penalises the child and that provides a solution that actually works and is respectful of the reality of the child's life.

Ms Cathy Wheatley

As parents, we also want to ensure that anybody who is carrying our children is protected and looked after. There are certain countries where there are legal frameworks in place to protect surrogates. These include the US, Canada and Ukraine. In Ukraine, where we went to have our children, our surrogate, whose name was Ivana, was afforded independent legal protection and advice, counselling, psychiatric welfare assessments and support. That was really important to us. At the end of the day, as parents, your surrogate is carrying your child and you want them to be protected in every way possible. You want all parties to be protected. As an organisation, one of the things we want goes back to Professor O'Mahony's recommendation. We want a pre-birth agreement followed by transfer of parental rights on birth. This would make sure that the amazing women who act as our surrogates still retain autonomy over their bodies, which is what every woman should have. There are ways to do that. We want to create a pregnancy partnership. We want to be able to look our children in the eye and tell them we did everything we could to protect the women who carried them and gave us the most precious gift anyone can give.

Ms Elaine Cohalan

On the first question, which was about altruistic versus compensated models, I have a letter. Our legal and medical practitioners weigh in on the technicalities but, at Equality for Children, we want to ensure that the rights and best interests of all parties involved in a surrogacy journey are upheld. We would like this committee and the upcoming committee to investigate appropriate models of compensation for surrogates, who give such a wonderful gift in helping people to create their families.

On the question in respect of sanctions, this is the one piece on which I slightly disagree with Professor O'Mahony's report. The idea of awarding parentage needs to be turned around slightly. The awarding of parentage is the awarding of equality to the child. Withholding it penalises the child. I would like the committee to investigate options through which legal sanctions could be applied to parents, medical practitioners or fertility clinics that do not abide by the law in a way that does not impact on a child's right to equality before the law. There are ways in which our laws can be an invisible protector and enabler of our children's best interests. I would worry about sanctioning people through the withholding of parentage because that means withholding rights from the child. I know Mr. Kenny also wants to come in on this point, if that is okay.

Mr. Gearóid Kenny Moore

I will make just a very brief contribution as I am conscious of time. My husband and I are the parents of three children. We initially began our journey back in 2014 working through the Canadian system, which was ultimately unsuccessful for us for medical reasons. However, I feel members of this committee could look at many elements of that model when deciding on these issues around altruistic versus compensated surrogacy, sanctions and the rights of the surrogate.

Under the Canadian model, everything that occurs before birth is focused on the rights of the surrogate. She must have independent legal advice and independent medical and psychological supports. A variety of government-approved agencies are appointed to support surrogates as they work through their pregnancy journey. They are accredited and have to meet very strict terms and conditions. The clinics that support surrogacy journeys are bound by the same regulation. The Canadian model is a really strong one to consider because, before birth, everything is focused on the rights of the surrogate. However, as soon as the child is born, parental rights are immediately transferred to the intended parents, allowing them to make decisions. Up until that point, everything to do with bodily integrity, even to the point of having the right to abort the child, rests with the surrogate, her family and her legal team. That is a model that might bring some clarity for those interested in the issues concerning altruistic surrogacy by comparison with compensated surrogacy and the rights of the surrogate.

Deputy Ivana Bacik

Those were great responses.

Senator Erin McGreehan

It is great to hear from all the delegates. It is very appropriate that we have them here on St. Brigid's Day considering St. Brigid's really strong connections with fertility and new life and her perception of children. This whole conversation embodies what St. Brigid means to me. Regardless of how a child comes into this world or is carried, it is an absolute miracle. We need to grab hold of that.

Ms Merrigan's contribution broke my heart. She articulated so well the reality of the State not catching up with the reality of families. I am sorry that, instead of spending time with her beautiful children, she must come here to advocate on behalf of everyone's children. I am really sorry about that. A family, regardless of its manifestation, should be protected.

I have a few questions for the representatives from Irish Families through Surrogacy. Can they give examples of the difficulties families face because of our lack of legislation and our not being able to catch up as quickly as we should with the reality of families?

With regard to countries with best practice, I was interested in the reference to Canada. Is there any other country we should be examining with regard to best practice?

I had not thought before about the difference between parentage and guardianship. To me, as a complete layperson coming to this conversation and listening to the contributions today, it seems like there is a two-tier model. It does not seem that the children in the two categories would be equal. I would like the representatives to elaborate on this. Ms Cohalan mentioned it. It reflected what my gut was telling me when I was listening to Professor O'Mahony's contribution on the issue. I would really like to hear further comments. My partner and I are not married. Technically, we had to go through the whole guardianship process. My partner is a parent. The two-tier parentage phenomenon really bugged me. I can imagine it is grating for many other families. Legally, emotionally and practically, it seems a child could be on a two-tier road. I could be absolutely wrong. It does not seem like there is equality to me. I thank all the delegates very much. I really enjoying learning from all of them.

Ms Cathy Wheatley

I will give practical examples of what families are facing. My colleague, Ms Merrigan, will then talk a little about countries that we can model

One of the main challenges we face from day to day is exemplified by the circumstances of one of our group members, who has two children. One was born naturally to the mother and the second was born through surrogacy. The current position is that the mother has a legal relationship with one child as a parent but not with the other. The family is effectively split in two in that way. Unfortunately, the father of the family has had a recent cancer diagnosis. One can imagine the stress and anxiety this causes on top of everything else. God forbid, if anything should happen, the second child would be left without a legal parent. It is gut-wrenching to think of the effect if anything were to happen. Any of us could be in this situation. We all sympathise with the family.

Second, during Covid times only one parent was allowed into hospital with a child. I experienced this recently, as did one of our members. Unfortunately, my little girl had Covid-19. We were very worried about her. She developed pneumonia, she was very sick, and we went to the hospital. I knew that I could not legally sign for her treatment if anything were to occur. I went to the hospital and sat in the car in the carpark and cried my eyes out because I could not be with my baby. I get a bit emotional about this because the reality is that I am her primary caregiver. My child was in the hospital with her much-loved daddy and he was doing everything he could, but she was crying for me, her mammy. I was on video chat trying to reassure her tell her it would be okay, and tell her daddy the answers to the questions the health professionals were asking, because I was with her most and was her primary caregiver. The anxiety and stress that causes for a family at a time of incredible worry are difficult to take. That is a personal example. Members can probably hear from me how much it affected my family.

Let me give another example. It pertains to another member of our organisation. Her children were left with no legal parent in the State for five years. The children got a declaration of parentage for their father just before they started school. The limbo they were left in caused so much anxiety and stress for them. Until the father got his declaration of parentage, the mother was not able to apply for guardianship. For five whole years, and longer in certain cases, children can be left with no legal parent in the State. It comes down to whether one goes through the High Court. It is kind of a postcode lottery, considering where you are in terms of the District Court, etc. It really leaves a child unprotected and vulnerable. All parents want to do is protect their children. As everyone knows, they will do anything they can.

With respect to vaccination, one mother was not allowed to consent to giving the Covid-19 vaccine to her child recently. Sometimes when we think about vaccinations and so on, we think about bringing babies for their first vaccination. We were not allowed to do that. The children's daddies had to go with them. Obviously, it is an emotional time and one wants to do everything one can. Even as time goes on — the kids are five or six years old, and some are seven or eight — the mothers are not allowed to consent for them to have a vaccination. It should be simple for them to do so. When broken down to what we deal with on a daily basis, it is hard.

Some women in our group live in fear because if anything were to happen to the relationship, they would have no legal rights to their children. Let us think about that for a second because it really leaves women in positions where they may have to stay somewhere they are not safe and is difficult for them. They need to be protected as well and in such a case they will not leave their children. Nobody knows what will happen in future and situations change but it really brings home to us that every family model is different. Nobody knows what will happen in each family model and, for us, it is really about our children. We do everything we can to protect them but sometimes we cannot because we do not have that legal relationship with them.

Ms Merrigan will speak to the question on best practice.

Ms Ciara Merrigan

I thank Senator McGreehan for acknowledging that we are here for our children and, as Ms Wheatley has said, we will do anything to protect children like a mother lion. I would be here a thousand times over to protect my two three-year-olds. I have a little girl and boy born through surrogacy.

There was a question on best practice and there are countries we would ask the special committee on surrogacy to review. The first is looking across the water at the UK, as we always do in Ireland. The UK has recommendations from its Law Commission and although they are not yet in law, they would be interesting for the committee to look at. In the other direction we can look to the United States. New York has a surrogate bill of rights if the committee wants to look at that model. Among European countries, Greece would be a good example of an EU country with a comprehensive legislative process in place.

I echo what Ms Wheatley has said in terms of parentage for people's understanding. People may not understand the full process. Our children were born internationally. Like Ms Wheatley's twins, my twins were born in Ukraine and before coming home from there, our children had to have DNA tests completed. We then applied to the Department of Foreign Affairs for an emergency travel document to get home to Ireland. In Ukraine, when the children are born, their births are registered, as they are here in Ireland. For example, on the register is my name, my husband's name and the name of our surrogate, Lydia. All the names are accounted for in that register.

My twins' birth certificates have my name and my husband's name on them. All our group know about the smack on the face when we land at Dublin Airport with our beautiful babies, as we are no longer considered their mother because the State recognises the surrogate mother as the mother because she delivered the child. We are really asking that we do not lose this opportunity now and we try to get this right for our children. We do not want to have a generation of children who have never had legal recognition with the parents caring for them every day, looking after them and mothering them.

Ms Wheatley mentioned how one of our member's children were five and my children were just under three when we got their parentage through. It is three years without having a legal parent in the State and one lives in fear every day that somebody will come in and take the children. It is not right for our children and it is unfair for them. It is now time for this to be sorted, particularly for the children now in the State. There are children arriving every day from different countries who are born internationally. We have children up to the age of 18 who, unfortunately, have never had the legal relationship with their mother. The time is now and we just do not want to lose this opportunity.

Ms Elaine Cohalan

I will speak to a couple of matters before letting Mr. Kenny Moore in. There were questions about a couple of day-to-day issues and I will cover citizenship. It might seem like an automatic right that every child in Ireland should have but, unfortunately, there are cases where children are born outside the provisions of the Children and Family Relationships Act 2015 and born through surrogacy. For these, citizenship can be a significant difficulty. As it stands, those children born through surrogacy outside the Children and Family Relationships Act 2015 can only claim one parent and citizenship from that parent. They are non-recognised parents if they are from another country or if they are not from Ireland, there can be difficulties with attaining Irish citizenship.

I can start with my own example. My wife is from the US and she is not recognised as the other mother of our daughter, who was born through intracervical insemination. Therefore, she cannot claim any American citizenship entitlements that every other child in that scenario - if it was a heterosexual, cis scenario - would be able to claim, regardless of how the child was conceived. That is because there is a presumption of paternity in Irish law.

There is an example involving surrogacy and a member of the IFTS with whom we worked closely. André is not an Irish citizen and he was the recognised parent of the child he and his wife had through surrogacy. The child could not claim Irish citizenship through his lineage because he is not an Irish citizen. In this case, the child is left stateless. Many issues arise from surrogacy arrangements because the parents or intended parents are not recognised as parents.

There are also issues around travel and the issuing of passports. I can again start with my example and although the birth did not come through surrogacy, it is the same scenario. I had to sign an affidavit when applying for our daughter's passport and agree no other person had any involvement in her raising and parenting her. As one might imagine, many families decide not to get passports for their children and simply do not travel because this is such a difficult, emotional and awful thing to have to sign away the other parent's rights, effectively. There is also fear involved and we certainly had the worry that by signing that document, we could affect any future establishment of that legal relationship. That has an impact when a child has only one parent listed on the birth certificate, only one parent can apply as a parent for a passport, so the child can only travel legally with that parent. The child can only travel with the other parent with the express and written permission of the parent deemed the biological parent.

This creates many issues for us, for example. My wife is from the US and we have lots of family there. Her travelling with our daughter without me is extremely problematic. We have lots of examples in our membership of people having difficulties in airports and at borders for those reasons. Mr. Kenny Moore will speak about some other daily difficulties he has come across.

Mr. Gearóid Kenny Moore

I have three examples that may be of interest to the committee. In my previous input I spoke about how we did not succeed in having our children through the Canadian system but, ultimately, in our case and having been through four years of stress and hardship, a friend of mine who lives in England came forward and agreed to carry our children for us. We initially had twins just over three years ago and then six months ago, our little daughter Anne was born, again through the same surrogate supporting us. I am in the very privileged position of being a stay-at-home parent to three kids aged three or under. It is mayhem.

The reality is I am only legally connected to one of my children and I have no rights, pretty much, with respect to our newborn daughter. When I bring her to the green to play or go for a walk, all of my neighbours pretty much have the same level of rights and privilege towards her as I do because I cannot claim guardianship for her. I will speak a little about that topic of guardianship right now.

As I alluded to, one cannot as the second parent claim guardianship of a child until he or she reaches the age of two.

As our colleagues from Irish Families Through Surrogacy explained, that means I cannot participate in any of her medical decisions or her vaccinations. It is a pretty big slap in the face, to be quite honest. I cannot even do things like open a bank account for her. If we go into our local bank, as two same-sex male parents we stand out a little bit more than a heterosexual couple with three kids under the age of three. It is immediately obvious to the people we are talking to in institutions like banks or passport offices that there are two same-sex parents raising kids. The bank obviously has a duty of care towards its business and has to ask that only the legal parent can open a bank account or savings account for our daughters to deposit the gifts they got from their aunts and uncles.

It gets more severe. As we touched upon, when our children, who are connected to us through guardianship, reach the age of 18, most parents celebrate that day but I will dread it. When the candles are blown out on that cake I will no longer be the parent or guardian of my kids. If I want to leave them an inheritance, I will have to get a special dispensation from the Revenue Commissioners because we are legally unconnected. I am now in the position where my elderly mum is in a nursing home and I can see very clearly the importance of having the right to make guardianship for our parents. Touch wood, I will live to be an old man as well. I would want my kids to be able to make decisions for me, but currently they cannot do that. Once they turn 18, they will have no automatic right to care for me. In the event I had a sudden illness where there was not an opportunity to put in place appropriate arrangements to look after my welfare, my guardian children would not be allowed to sign me into a nursing home or consent to a medical procedure because we would just be considered as two people who happened to share a house for 18 years. Guardianship is a really inferior option because it does not kick in until the child is two and is extinguished at 18, basically obliterating the memories that we are a family.

We touched on international surrogacy but we should talk a little bit about how domestic surrogacy works when it comes to birth registration. This was mentioned already in respect of the fact Senator McGreehan and her partner were not married at the time their child was born. When birth registration occurs in a surrogacy case here in Ireland, the only person who has automatic legal rights to be considered a parent is the surrogate, regardless of whether she is biologically connected to the child. Earlier in the session we talked about protecting surrogates. Actually, typically surrogates do not want the responsibility of parenthood. They want to support a family to have their children and then to get on with the lives and families they have themselves. Our State forces them to go on the birth certificate and to take on the role of the sole legal parent at the birth of their child. The biological father has the opportunity to go on the birth certificate but it typically only occurs with the consent of the surrogate. Even when that is concluded and the birth certificate is issued, the father still has no automatic rights around custody or guardianship. They must also be sought. The birth registration process in Ireland as it stands at the moment places an undue burden on surrogates because it puts them in the position of being the automatic primary carer for a child who is not necessarily connected to them. It leaves them in a situation - it has never happened and touch wood it does not happen within the jurisdiction - whereby the intended parents could actually say they do not wish to care for this child and leave the surrogate with the responsibility for the child. They are some of the issues.

On a personal level, our children were born in the UK. They have British registry documents. My guardianship is a really tenuous relationship to have with my children. It is something that genuinely upsets me.

Chairman

I thank Mr. Kenny for sharing that. I acknowledge this is not an easy topic for people to be discussing. It is very personal and very emotional. We appreciate as a committee that people are speaking to us and advocating. I know their children appreciate it very much but we appreciate it as well. It is most helpful for us in our work.

I am going to move on to our next speaker. I did not come to Professor O'Mahony or Dr. Bracken but there will be opportunities for them to come back in, I am sure.

Senator Mary Seery Kearney

I thank everyone for attending today. They are very powerful, real, lived experiences of people who passionately love and advocate for their children. It would be prudent of me to commence my section by acknowledging my personal experience of surrogacy. No one in the surrogacy space, either domestic or international, wants to see anyone's human rights violated. That is a commonality among all of us. No one wants to see women exploited and no one is in denial of the potential for exploitation in some jurisdictions. Let us dispel the notion we are unwilling or have our heads in the sand as to the potential here. We want to engage with that and find an ethical route through it that safeguards everybody's rights.

We also have to acknowledge in this space that intending parents are also vulnerable and at the risk of being exploited. They are obliged to engage with their childlessness in the world of commercial fertility clinics, whether in Ireland or abroad. It is also in Ireland; let us be clear about that. Infertility arises in a number of ways, whether it be diagnosed, undiagnosed, arising out of serious or chronic illnesses and disabilities, or arising out of the social infertility of same-sex couples for obvious reasons.

What are we saying? In some of this debate and some of the contributions we hear in public areas, we are saying we are going to decide who can and cannot have a child, that in 2015 when we voted for marriage equality, we were going to put a ceiling on who should be entitled to the opportunity to aspire to a family. No one in this space thinks they are entitled to a child but they are entitled to the opportunity to create and try for a family in the same way everybody else does. I believe this really is about an ethical pathway, about the possibility of parenthood and ensuring everybody's rights are safeguarded. The failure to legislate and to address maturely the very reasonable questions that arise is signalling we are deciding who can and cannot become parents. That is not a reasonable position for anybody to take. As legislators we have to have the courage to take on board all of the potential here.

My vision for the outcome of the international surrogacy special purpose Oireachtas joint committee - that is quite a mouthful - is that we have some sort of oversight entity in Ireland that regulates assisted human reproduction, full stop, and that we have a structure that guides and incentivises or funnels, as Professor O'Mahony has said, couples needing surrogacy in order to have an opportunity of parenthood to choose the most ethical routes possible. There is an ethical way we can honour the European Court of Human Rights obligations on us to provide that route to having that parental relationship legally recognised. We can also ensure we can apply the UN standards so that, when our people travel to other countries, there are similar standards in terms of human rights, it is free and informed consent, and there is access to the court, independent legal advice and independent translators. There is a collective experience among those who have been there and done it that can contribute to the due diligence. It is about putting that into the legislation, either primary or secondary, or in the guidelines that are required. It is important we ensure we have one genetic link to a child born via international surrogacy, that compensation payments are made in advance of any birth so it is not seen to be transactional around the birth of the child, and that we have oversight.

There are two important things to introduce into this. Tusla, the Child and Family Agency, is a member of the International Social Service, ISS, an international federation of organisations that includes NGOs and governmental agencies.

Their main purpose is to reconnect families across jurisdictions. However, ISS has developed what are called the Verona Principles, which require comprehensive safeguards and protections for children born via surrogacy, and that they should be clearly established in relevant legislation, policy, decision-making and practice. There is also the Hague Conference on Private International Law which has an expert group that is expected to report in 2023 on the private international law issues relating to international surrogacy. These are important to set a context for those who are starting to speak out on international surrogacy and on this need in anticipation of the committee.

I welcomed Professor O'Mahony's report. I was very grateful when it was published and that the Minister took the decision to publish it. However, between that and Professor O'Mahony's statement today, there are two things that raise concern for me and which I would like to discuss. I am with Ms Cohalan all the way on the sanctions element. I believe we will end up penalising the child. Also, the law as it stands sees a parental order for the father automatically because of the way we assign citizenship, which means that the guardianship would perhaps only be effected to the mother or the second parent in that instance. I would be loath to see that. I am aware of the current availability of guardianship and custody in many instances, including my own, but I am aware of situations where that has been weaponised in other couples in relationship breakdowns. Given the fact that guardianship can be lifted and removed, I would be fearful of that.

Professor O'Mahony also has a line which states that we need to ensure that intending parents are suitable parents. As we look around this call, what would he determine to be suitable parents and where is that threshold? Should we not apply that to all people who are being parents? I believe there is an inherent possibility of bias in that, or that it subscribes to a stereotype about parents and couples pursuing their passion for a child via surrogacy and ascribes the stereotype to them. I am mindful of that.

I agree with Mr Kenny Moore with regard to Canada. There is a model there that we should be pursuing. He also touched on something very important, which is with regard to language here. We refer to surrogates. That is not meant to be dehumanising or disparaging in any way. It is the preference of the women who we prize in our lives who gave us the gift of our babies. At present, children can inherit from women who did not intend that lifelong relationship, so they prefer to take that word out of it although we very much respect their role.

I have said enough and will hand over to the witnesses.

Chairman

I will call Professor O'Mahony first. If any of the other witnesses wishes to contribute on this, they can indicate that.

Professor Conor O'Mahony

There was quite a lot in the previous two rounds of questions. I will deal quickly with the second point, before coming back to the guardianship versus parentage question, and explain my thinking on that. On the question of the assessment of parents and the authorisation of the arrangement, this essentially is similar to what would happen in an adoption scenario. It is not the case that parents who want to adopt can simply turn up and say they are going to adopt a child. There is a process through which parents are assessed as potential adopters.

We have to be conscious of the risks here as well. I absolutely agree that in the vast majority of cases the issue here will be a relatively straightforward one. Absolutely, these are people who have a deep desire to have a child and to do the best they possibly can for that child. However, in this world there are going to be people who are concerned about the risks here. The risks, when one strays into the very serious side, appear from a sale of children point of view and the motivations of people who might be inclined to make use of international surrogacy in countries where regulation is poor in order to get their hands on a child they might not otherwise be able to get their hands on. These risks exist. I am not saying that it is a big risk in the vast majority of cases. Nonetheless, if we are to have a legal framework we can stand over and say it is compliant with the highest children's rights standards, we must legislate not just for the best cases but also for the risks associated with the very rare and worst cases that might also arise. That was the thinking there.

On the other question of parentage versus guardianship, in a sense it is regrettable that the term "sanctions" came into our discussion at all. I did not use that word at any point in the report, and it obviously paints it in a particular light. The thinking behind this is that our discussion today so far has entirely focused on the recognition of family relationships. We have not really talked about the right to identity. The remit I had for the report was to look at all children's rights and children's best interests. The principle of children's best interests envisages that all children's rights be protected, including the right to identity. Members of the committee will have engaged in the last while with people working on the Birth Information and Tracing Bill, will have met people working on that issue and will be acutely aware of what a big issue identity is for people who do not know their origins and their birth story and of the lifelong impact that has. That is a significant issue in this conversation. It is one we cannot lose sight of and one we are legally bound to take into account in what we do.

Let us look at what we do currently in the Children and Family Relationships Act 2015. In order to try to protect the right to identity we tell people that we want them to go to a clinic where there are record-keeping obligations, as that will ensure that people can trace their identities later. However, to make that happen, we say that if one engages in a do-it-yourself, DIY, procedure at home, one is completely outside the Act. In essence, one qualifies for nothing. In trying to protect identity we say it is all or nothing - people either get the recognition of the family relationship and protection of the right to identity or they get neither of those things. What I was attempting to construct was to take the idea that we want to ensure that identity is protected, which means that we must have non-anonymous, identifiable donors being used, record-keeping procedures and a framework that will allow people to trace their identity if and when they wish to do so. At the same time, we also want to avoid that all-or-nothing approach which is the flaw in the Children and Family Relationships Act at present.

On guardianship and parentage, from the point of view of all the practicalities we have discussed today, guardianship is the more significant status. For example, an unmarried father who has not been appointed a guardian has parentage, but he is not able to consent to medical treatment, is not able to consent to a passport and so forth. From the point of view of the day-to-day practicalities, it is guardianship which gives people the legal right to make those decisions, not parentage. Guardianship will address those points.

Mr. Kenny Moore mentioned that it does not kick in until two years of age, but the recommendation in the report was not that somebody who finds himself or herself having guardianship rather than surrogacy would have to wait those two years, but that it would be available immediately and not just from the age of two years. The key point in all of it is that what I was trying to achieve in the report was not that anybody would find himself or herself in this position but that all somebody has to do to qualify for full parentage would be to ensure that the right to identity is protected by using an identifiable donor and then filing the relevant paperwork with the relevant register, which would include the information that would allow people to trace later on. Anybody who does that gets full parentage. It was intended to be a nudge, something that would steer people in a particular direction. It was not really intended to be something that one would want to see used with any type of frequency. It would simply be that people would go into the process knowing that if they engage in international surrogacy or decide to opt for an at-home donor-assisted human reproduction procedure, they know when they go into that process that they want full parentage, which, for all the reasons Mr. Kenny Moore articulated so well, is what people want.

We need to make sure that we use an identifiable donor and we file the relevant paperwork, and if we do we will get full parentage. It was intended as a nudge and to avoid the all-or-nothing approach that we currently have for at-home procedures, which means that people will have nothing if they do not protect identities. There is a safety net element as well.

Senator Mary Seery Kearney

I must make it clear that no one wants to deny identity. As a member of this committee, I have come through the birth, information and tracing legislation and sat with very many groups and individuals over the last year. There is no desire to deny identity and to have that full transparency. However, we have a difficulty when it comes to retrospectively dealing with children who are already in existence. Having a framework is very important as we go forward, but we need to have this. We need to deal fairly with people who went out and operated within the legal framework that existed in other countries yet now find themselves in Ireland. Their children need to be recognised. I think we will be obliged to have a transition period which deals with that retrospectively and then sets up a framework that incentivises transparency of identity and is transparent when it comes to the conception circumstances of any child. In my experience of groups, there is no desire to withhold that information. I appreciate that there are some countries and clinics where that is not possible. I believe we can put systems in place to require the affidavit and the information in line with the systems that already exist.

Professor Conor O'Mahony

When we talk about the differences between guardianship and parentage, the day-to-day decision-making issues are generally covered by guardianship. Citizenship and inheritance are situations where one gets a divergence between the impact of parentage and guardianship. Potentially, one could build a workaround on that into the legislation. That is not beyond the bounds of possibility.

Mr. Kenny Moore mentioned the question of children making decisions for their parents down the line. Even though we use the term "next of kin" in a day-to-day context, it has no legal status at the moment. Even in cases of children who are recognised and where there is a full relationship, parentage currently does not give a legal right to make decisions for parents down the line. The Assisted Decision-Making (Capacity) Act, which is just about to be commenced, is the legislative framework that deals with this sort of issue and would be the home for addressing this question. However, it does not have a direct bearing on the question of guardianship versus parentage under current law.

Ms Cathy Wheatley

I want to talk about identity and how we deal with it as parents. As Senator Seery Kearney has said, we did the best we could with what we had. At the time, some people went ahead and used donors but identifiable donors were not available. That issue will definitely have to be addressed. Nobody did anything wrong. They did the best they could at the time.

As an organisation, we welcome the publication of Professor O'Mahony's report. When I met him in person, I told him so. It is great to have a framework in place where we know the best interests of our children. As parents we know but it is good to have it there as well and the publication eliminates any doubt. The best practice for children is to have a right to their identity and that is what we try to provide.

I will talk about how I do it as a mother in talking to Ted and Elsie. I really believe that from an early age these conversations need to be had. Ted and Elsie are my twins and they are two years old now. If they grow up knowing everything that they know about their story, that is the healthiest possible thing for them. We talk to them daily. We tell them that mummy's tummy was broke and that I needed a lovely lady to carry them for me. Ivana is our much loved surrogate and we are in regular contact with her. We call Ivana their tummy mummy because she carried them for the nine months of pregnancy. Ted and Elsie very much know that during that time they were inside Ivana's tummy. That deals with one element of surrogacy and the carrying of a child.

It is important to try to establish a relationship with the surrogate. Ms Merrigan has a fantastic relationship with her surrogate Lydia, as I do with Ivana. We are in constant contact, exchange pictures of our families and give each other advice. It really is a fantastic relationship to cultivate. When we talk about pregnancy partnerships during pregnancy, that is really important because the relationship continues to be built for the children. We want our children to be able to know what happened. My children say, yes, Mammy, I was in Ivana's tummy, and she is our tummy mummy and you are my mummy. That works for us.

In terms of donor identity, Ted and Elsie were born through donor-assisted human reproduction. They very much know that story as well. We broke the information down into basic details. We have told them that I needed an egg because all of my eggs were cracked and did not work and, therefore, we had to get a lovely lady's egg. In terms of the basis of trying to talk to our children about this matter, we very much want to do that. As an organisation, we try to show people best practice and make sure the language used suits the children. I do not know if these are the right things to say. This is what I do as a mammy. I am not saying it is perfect; I am saying it is the way my children respond to it.

In order to move forward with identifiable donors, I was lucky that at the time I was able to get donor identity to be released to Ted and Elsie at the age of 18. We now know that this practice is not what is recommended. If I was in that position again, I would first fight for them to have a recognisable donor or I would go somewhere to make sure that was the case. Now that we have this information, we are able to put it into practice. That is what we want from the legislation going forward. We want to make sure we have a clear understanding for everyone involved.

Ms Elaine Cohalan

I agree entirely with Ms Wheatley's input around the right to identity and with Senator Seery Kearney.

In terms of the child's right to identity, there is no member in our organisation or family that I am aware of who is against the principle of children having the right to know their genetic origins. We are very much in favour of the donor registry that was put in place through the Children and Family Relationships Act and all provisions that have been put in place through surrogacy. If there are situations where that is not possible, or where identifiable donors are not available, I would reframe the awarding of parentage as follows: the awarding of equality to the child should not be withheld because of decisions that were made before their conception and are outside of their hands. I think we need to continue to reframe it around the children's access to equality, to equal status before the law and the State, and to a family life.

In terms of the discussion around the assessment of parents, I am not sure if it is appropriate for me to ask Professor O'Mahony a question. On the assessment of parents and aligning that concept with adoption rather than what already happens in terms of assessment or lack thereof with IVF, IUI and other assisted human reproduction treatments, especially when the recommendation is that parents availing of surrogacy must have a biological link in the case of international surrogacy, I question why the alignment went with adoptions rather than with what already happens in practice with other assisted human reproduction procedures.

Dr. Lydia Bracken

I will make a brief point about what happens if the ethical framework we strive to build for surrogacy is not adhered to. My academic view is that if we put all of this effort into building an ethical framework for surrogacy, we need to consider what happens if and when certain intended parents do not adhere to all of the elements of that framework.

In other countries, the consequence would be that people are simply not entitled to parentage in the way we have seen many families have that experience under the Children and Family Relationships Act, where the specific criteria are not met. My reading of Dr. O'Mahony’s report, which he can correct if necessary, is that by allowing for guardianship to be awarded in certain circumstances, we are giving the court more options. It is not simply a case of saying, “No parentage and go home”, but rather a case of saying, “Here are some other options.” We need to emphasise that any determination would be made in the best interests of the child. After assessing the full circumstances and whatever has happened in the surrogacy arrangement, the decision is made on the basis of the best interests of the child. The more options we can give our courts in making those determinations, the better, so it is not a case of saying, “Just go home” and saying that no legal parentage is awarded. We need to consider what we want our framework to look like but also the consequences if that framework is not adhered to.

Professor Conor O'Mahony

I might reply to that because it covers both points. The way Dr. Bracken has described it is exactly what I was aiming for so we would not go down that all or nothing route. As I said earlier, it is trying to give a nudge. If it is the case, and I have no reason to think otherwise, that parents all believe identity is important, then hopefully they will do everything they can to use identifiable donors and to make sure the records are kept, and so on. In that event, the issue of guardianship simply does not arise and it is not part of the conversation. It was trying to have that nudge in there because, otherwise, while we talk about that idea of equality, we are just trading one risk for another. If we say there is no consequence to not complying with that, what we are likely to see is more children for whom the identity records are not available. It is about trying to find a balance. There are so many different and competing considerations at times. What I was attempting to do was to construct a framework that will balance them all as best as possible.

Ms Cohalan made a reasonable point that adoption was not the best example to use, particularly given that the process will be court-based in any event. The better comparator would probably be where somebody goes to court seeking guardianship in the sense that, if somebody goes to court seeking to be appointed a guardian, a judge will have to make that decision as to whether it is in the best interests of the child to appoint this person, as Dr. Bracken just said. In any of those circumstances, there will be an assessment by a judge of what is best for the particular child and whether a relationship with his parent is best for this child. It is a case of putting in place a filtering mechanism to guard against the worst things that might happen. In the vast majority of cases, they will not happen but the risk still exists that there may be people seeking to use international surrogacy to acquire children for purposes that we might not want. The fact there would be this filter of having to go before a judge and convince the judge that this is all above board provides a level of protection against that risk. Again, in the vast majority of cases when dealing with intending parents who very deeply want to have a child for all the right reasons, as with current guardianship applications, that would be a process where the judge should be able to satisfy himself or herself of that relatively easily.

Deputy Jennifer Murnane O'Connor

I thank the witnesses, in particular Ms Wheatley. Her story was very refreshing, particularly regard in to identity with the child. I welcome that. We need to hear the real stories and that is very important for all of us.

I have several questions. I apologise that I was late but I was attending oral questions to the Taoiseach, and I am not sure if some of my questions were asked. This issue falls under the three Departments of Justice, Transport and Health but, surprisingly, not the Department of Children, Equality, Disability, Integration and Youth. It is very important that we have a separate committee to discuss this. While we do not have a roadmap, what are the witnesses’ hopes for the special joint Oireachtas committee on international surrogacy? What do they hope to achieve from this?

My second question is to Dr. O'Mahony on his report. I want to ask about the approaches taken in different countries. Does he think the discussion on corruption and exploitation is helpful? He suggests Irish surrogacy over international surrogacy in the report, and he might come back to me on that.

On the question of family through surrogacy, my understanding is that six regular couples in Ireland are going to Ukraine on their surrogacy journey. Are they getting the support they need, given the political situation?

My last question is for Equality for Children. In 2015, the Children and Family Relationships Act was passed. What has happened since its commencement in May 2020? How can we learn from this legislation to strengthen the Assisted Human Reproduction Bill? I again thank the witnesses.

Chairman

There are a number of questions for Irish Families Through Surrogacy and I ask Ms Wheatley to deal with those. I will then call Dr. O’Mahony and the Equality for Children representatives.

Ms Cathy Wheatley

I thank the Deputy. On the specialist committee that is coming up, we want it to look at all aspects of surrogacy but we want it to keep in mind that these are real families we are talking about. These are ordinary, everyday people – nurses, teachers and farmers - who have found themselves in a situation, through no fault of their own, where they have to avail of surrogacy to complete their families. For us, surrogacy is a medical treatment and an answer to a medical problem, which is very important to remember. It is not a choice; it is a medical treatment. With so many advances in medical treatment, we are very privileged and honoured to be able to create our family in this way.

By no means do we feel entitled to do so. We just feel absolutely delighted that we can, given situations like those mentioned by Ms Merrigan in her opening statement. We have members who have cystic fibrosis and members who have congenital heart defects. In my own situation, my first little girl was stillborn. We really need to get across that it is not a choice. It is 100% our only option to create a family.

In terms of what we want, our asks are very simple. We absolutely want a pathway to parenthood for the mother or second parent of children who are already born. That is really important to us. As we talked about previously with Dr. O'Mahony and Senator Seery Kearney, we want an amnesty if the criteria do not meet expectations going forward. We need to make sure that these children are not left behind and that we have that pathway to parenthood. We want all parties protected. As we said earlier, we want our children protected. We want our amazing surrogates protected because they are doing this for us. We want a future route for parents of future children who are going to be born. As Dr. O’Mahony said, whether it is domestic or international, it is still going to happen and international surrogacy is very much still going to happen. We believe those people are entitled to parenthood.

We cannot underestimate the power of language in what guardianship gives people and what parenthood gives people. Once we break it down, we are very much their parents, and guardianship just never seems enough because of the fact it ends at 18. That is a real bugbear for us as families. We really want to make sure that we are recognised as their parents and to let the children have that. Our children need to know that it is not going to stop at 18. It gives them a sense of security and stability and it is a lifelong commitment to them that we have all made.

We want international surrogacy recognised and we want that for a reason. If it is recognised, safeguards will be put in place that will protect our surrogates. There will be situations where we can assist the process. It is very important for that reason. We also want an ethical framework for everybody involved.

Our hope for today's meeting is a little different. What we want from this is to separate those two issues. There is, of course, a conversation that needs to be had around international surrogacy and it is a very important conversation. At the end of the day, however, there is a conversation about the children who are living, breathing Irish citizens who are here now - our families. We want to get across the need for them to be protected now as opposed to them being bundled in together with international surrogacy and what that means. If I could just show committee members the faces of the children all going through different stages in life, from newborn babies up to children who are coming to 18 years old, I would.

The time is nearly gone and it will be too late for us to establish a legal relationship with those, which is absolutely not what we want as parents. I reiterate that we want to separate the two issues. We want the children's rights, of the children who are here and now, to be recognised.

Professor Conor O'Mahony

I will make a quick point about a matter that has arisen in a couple of the recent contributions. I refer to the question of how will recognition be given to surrogacy arrangements that have already happened. In my report there are recommendations that we have been discussing about that question of needing to have the identity aspect covered in order to qualify for full parentage. On page 43 of my report it is specified that that would not be a requirement for the retrospective cases simply because people would not have known it at the time. I clarify that for retrospective declarations under my proposals it is, essentially, that transitional arrangement that we have already discussed and that the identity requirement would only be for future cases.

I was asked about domestic versus international and why would we want to incentivise people to engage in surrogacy here rather than abroad. This is for a couple of reasons. We are having a discussion here today where all of the contributors are very much in favour of putting in place laws that will facilitate people to engage in surrogacy be it domestic or international. That is the tenor of the discussion today but that is not a view which is universally shared. There are people who have very significant concerns and even objections to all of this. Consequently, in any laws that we do introduce, we need to do two things. First, from a legal point of view, we need to ensure that we comply with Ireland's international law obligations under the Convention on the Rights of the Child and the European Convention on Human Rights. We must put in place the highest standards with respect to what we are required to do under those commitments.

Those laws also need to assuage the concerns of those who might oppose their enactment. From that point of view, when we talk about how can we regulate surrogacy in a way that we best ward off the potential risks to children's rights, surrogate mothers, intending parents and all parties involved, we always need to be cognisant of the fact that we can pass laws governing what happens here in Ireland and that we cannot pass laws governing what happens in other jurisdictions. Equally, there is a reality with international arrangements, as the English High Court has observed in some of the cases that it has dealt with, that by the time the child arrives in the jurisdiction it is often a little late in the day to try to do things to address anomalies that have arisen earlier in the process. This is the reason for the recommendations around the domestic process, in that if we try to have people engage in surrogacy in Ireland rather than abroad, we can put in place a framework where we have full control over the laws governing that. We can put in place the highest standards to protect the rights of all parties. We can also have that pre-conception part of the process where people go before the courts seeking authorisation before the process begins and that has two advantages. One is that it can avoid problems before they arise, that is, before the child is born rather than after. Second, from the parents' point of view, it means that parentage transfers immediately from the moment of birth and one does not get that in-between period. We can do all of that in a domestic framework. It is an advantageous process for those reasons and, therefore, it is good if we can incentivise people to do it here under that process, which is better for the child and the parents and allows us to ward off the risks more effectively. Once people go outside of the jurisdiction one enters a situation where we do not have full control over the framework governing the process. Our laws, in a sense, do not even become involved until the child has already been born. As more things can go wrong in an international arrangement, that is why I recommended a domestic arrangement.

For all that, I reiterate that we still need to make a provision for the international pathway simply because we are a small country and there will always be a limited availability of surrogates. No matter what we have as a domestic framework there will still be people bringing children home to Ireland having engaged in international surrogacy. That is the reality and we cannot continue to keep our head in the sand on that.

Ms Elaine Cohalan

On the impact of the Children and Family Relationships Act, the Act was commenced in May 2020 and it allowed for prospective recognition. As Professor O'Mahony has outlined, it is an all or nothing approach. There are prospective arrangements for any child born after May 2020 if he or she met the criteria, that is, was conceived in a Irish fertility clinic either through IUI, IVF or reciprocal IVF, if he or she was conceived using either a traceable or a known sperm donor and the child was born in Ireland for same-sex female couples. Since that Act has been commenced hundreds of families have had automatic rights and the automatic relationship between the children and parents recognised upon birth. For those children, the details of their conception and their donors are put forward for the national donor registry. Those families are recognised as equal families before the law in Ireland.

Some people have referred to an amnesty but there were retrospective provisions outlined in the Act once it commenced. Families who did not meet those criteria but met other criteria, that is, if they were conceived in an Irish or an international clinic through IUI, IVF or reciprocal IVF, either using anonymous or traceable sperm donors and were born in Ireland, then those children and those families were able to apply for what is called a declaration of parentage through the courts system. Again, hundreds of families have availed of that opportunity and now have their families recognised as equal before the law.

There were anomalies. The impact of that, while a very joyful and welcome provision and an Act that was commenced in 2020, it also has left many families, including my own out of the legislation, and in some cases for seemingly incomprehensible reasons. For example, a lot of the legislation is built around the child's right to his or her identity. In our own case, we specifically chose to have a known donor in our conception for that purpose so that our child would always know who their donor was. If one had a known donor and conceived or had one's child before May 2020 then one was left out. If one had a known donor after May 2020 then one were provided for, so that is a very strange anomaly in the legislation. Equally, I refer to those families who conceived children outside of clinical settings. As I am sure all the members are aware, in the case of same-sex partnerships, marriage and couples, fertility is not always the reason they cannot conceive children and they do not necessarily need the services of a fertility clinic to conceive a child using a donor. Those cases are also left out of the Act. For the children who were born outside of Ireland, a child can be born outside of Ireland purely through happenstance such as early delivery while on holiday or for many other reasons. A child who was born outside of Ireland is also left out of the provisions.

The impact has led to a split in the already marginalised community. Historically, the LGBTQ+ community has been marginalised and discriminated against in Ireland. Now it is further so, by splitting people into two groups, people who qualify for tier 1 parentage and those who do not meet the criteria. We will see the impact of that over the years and it is already very evident.

Finally, I refer to the Children and Family Relationships Act in respect of identifiable donors. In terms of equality for children, we fully support children having access to information on their genetic origins. In some cases, families have embryos in clinics in Ireland and abroad that were created prior to the commencement of the Act, which may not meet the criteria around identifiable requirements. In those cases a very short period was put into the Act during which families had to use or lose their embryos, which seems like a very harsh approach to take. We have many families in our community where they have children who were able to avail of retrospective provisions through the Children and Family Relationships Act.

They will have identical siblings born to them in the future who will not be able to avail of that equality simply because they were not conceived or born on time or within the timeframe of the Act. That is another gap that maybe needs to be addressed within that.

Ms Ciara Merrigan

I have a brief comment on what Professor O'Mahony was saying on the assessment process, the assessment of whether somebody is suitable to go ahead with surrogacy, and that we want to try keep that here as domestic rather than international surrogacy. It will be very important that we look at the length of that assessment. When we look at adoption at the moment, I hear of couples spending two or three years going through the adoption process. Again, if it was to be a very prolonged assessment process, that would then drive parents overseas to carry out their journey.

There was a question on the current political situation in Ukraine and the couples who are currently engaged in their journeys over in Ukraine. It is correct there are a number of couples there and I think there are close to 14 babies due to be born by the end of May in Ukraine. I thank the Minister for Foreign Affairs, Deputy Coveney, and Senator Seery Kearney for all their assistance with all the families currently going through the process in the next couple of months. They are being a huge support to them. I hear from couples who are on the ground at the moment waiting on the birth of their children that things are very calm over there. Their clinics are being supportive and the embassy is as well. I thank the Minister and Senator for that.

Deputy Jennifer Whitmore

I thank everyone for speaking to us and especially Ms Merrigan, Ms Cohalan and Mr. Kenny Moore for being such fantastic advocates for their children and their families. There has been a huge amount of information, with much to take in and digest and I am relatively new to this issue.

I have a couple of questions. The first relates to what Professor O'Mahony was talking about, namely, what could be referred to as funnelling and coming back to this issue of parentage versus guardianship. Dr. Bracken mentioned in her opening statement that one of the things the regulation must ensure is that a child does not experience discrimination due to the circumstances of his or her conception. Does she foresee that if there were a differentiation between guardianship and parentage, that would meet the threshold of discrimination from her perspective or does she think it would still be allowable to be that funnelling, as it were, towards domestic surrogacy?

We were talking about the right to identity and the identifiable donors. In real-life experiences, do surrogates tend to want to have that connection going forward? I imagine there would be quite a few instances where they go through that parenting journey or that journey. I am not sure of the terminology so I hope I am not offending anyone. Once the baby is born, is there usually an expectation that relationship would end for some of them? Is it difficult to find someone who would consent to being identifiable and giving her information to a child? I am wondering if that could be a difficult criterion to meet.

The parents today have been fantastic advocates. Are there any advocacy groups that represent surrogates or are there children born from surrogacy who are old enough to be advocates for themselves and to tell us their story? I am just wondering whether their stories are available to be heard either in Ireland or internationally.

Mr. Gearóid Kenny Moore

I will take the question on the surrogate and the desire of the surrogate to maintain an ongoing relationship with the family. I will give my own personal experience. As I mentioned, we started our surrogacy journey in Canada. We had an amazing surrogate who tried to support us in conceiving a child or children for us. It did not work out. She continued to try to help other families and did have surrogate children with them. Her preference was to have an ongoing relationship with the family, as in to understand the various milestones that would be achieved, such as going to crèche, school etc.

In the case of the surrogate who supported us to have our three children, she is, as I mentioned, a personal friend. She was a gestation surrogate, meaning she had no biological link to our children. In fact, she was of a completely different race and colour to our three white, pasty Irish babies but when they were born she held them in the hospital. She stayed in the hospital with us while her postnatal care was being looked after. She has frequently visited us here in Ireland. She feels absolutely connected to our family but absolutely no connection to our children from a biological or maternal perspective. She would always say her relationship is primarily with me as her friend and my husband as my husband and that her relationship with the children is entirely distinct and separate from that. That is just anecdotal evidence from our perspective.

I participate in many forums for intended parents and people within the surrogacy community. My general impression is the majority of surrogates I have heard from who speak within those forums will say they want to have some sort of connection to the family post birth. The level of that connection will vary according to circumstances like how busy everybody is, time zones, locations, language etc. My understanding is that typically surrogates want some sort of connection to the family they have helped and the children they have conceived.

With respect to official advocacy groups for either surrogates or the children conceived through surrogates, I do not believe there are groups available. I am certainly not aware of them. There are informal groups where surrogates communicate with each other, where surrogates communicate with surrogates and the intended parents, and there are probably such groups for children who have been conceived through surrogates. However, I am not aware of any actual advocate groups that exist. I hope that gives the Deputy some insight and useful information.

Deputy Jennifer Whitmore

Okay. I thank Mr. Kenny Moore.

Ms Ciara Merrigan

I echo what has been said about the surrogates. I and Cathy went through the process in Ukraine and we both have very good relationships with our surrogates. There is still ongoing contact on roughly a weekly basis at least. Obviously however, not everybody wants this from the surrogate, not every surrogate wants to keep in contact and not every intended parent wants to keep in contact with their surrogate either. What we believe is in the best interest of the child is that we try to keep up that relationship with our surrogate.

Percentage-wise, it was a question I asked the clinic I was dealing with in Ukraine. I was told approximately 40% of all parents keep in contact with their surrogate and have a good relationship, but it obviously has to be a consensual relationship. Again, at the beginning of this process you meet your surrogate and it can be a question and a conversation you can have at the beginning of the process, before you decide whether to move forward, to know and to get her feelings on that beforehand. It would be an important conversation to have.

There are not necessarily any advocacy groups in Ireland for surrogates at the moment. There are online forums for surrogates and for intended parents. In terms of our own group, we certainly have good contact with some surrogates domestically and internationally who would be very happy to speak to the committee on this matter. Internationally, they are following our campaign, watching it very closely and have been passing on their remarks. They are deeply offended in terms of media and things like that so they would be very happy to come and speak to the committee.

Dr. Lydia Bracken

I will respond to the question on how we avoid discrimination against children based on the circumstances of their conception. That refers to the very limited situation where, in our new ethical framework for surrogacy, if the criteria are not met, a court might be able to award either parentage or guardianship in a particular situation based on the best interests of the children. That would come down to a policy decision that needs to balance the best interests of children in general by maintaining the integrity of that ethical framework with the best interests of that particular child who is subject to the case that is ongoing. Ultimately the decision will come down to the best interests of that particular child when the court has balanced the various factors. In that way, if guardianship was to be awarded in that particular instance, I would not view that as discrimination against a child, in particular when guardianship, as was already outlined, is really the mechanism that gives parents the ability to make decisions for their children and to undertake that caring role, although I fully appreciate it is not equivalent to parentage in any way. Again, it comes back to the policy decision of how we balance the rights of children in general with the interests of that particular child, which comes down to what our legislation will look like ultimately.

Professor Conor O'Mahony

When we talk about legal principles about non-discrimination, the law treats people differently all the time in all sorts of scenarios. An assessment in an individual case of whether a particular classification violates non-discrimination principles comes down to that question of whether it has a legitimate policy goal it is trying to achieve, whether it goes further than necessary in achieving that and so on. In that respect, the idea it is saying guardianship rather than nothing at all is the idea of trying not to go any further than necessary.

If you go the alternative route of saying that everyone gets parentage irrespective of whether identity is protected or not, that creates a different inequality. It creates an inequality where some children have a right to identity and some do not. My thinking was trying to create a scenario where as many children as possible got both parentage and identity protected. My thinking was the scenario most likely to achieve that was the one laid out in the report, because for all the reasons we have heard today, people want parentage - that is what they want - and therefore people would opt for that. The guardianship thing in the background was just something to try to nudge them in that direction and that the number of people who might end up using it would be smaller than the number of children who might be born without an accessible right to identity in the other situation.

Senator Sharon Keogan

This is a topic I really was not very familiar with at all. I thank everyone for sharing their experiences. Each one of them has made me think about the challenges they face. This can be a very contentious issue and it evokes very strong emotional reactions. The idea of a woman undergoing pregnancy to give birth to somebody else's child challenges all our traditional notions of what being a mother is and what motherhood and parenthood are. It has emotional and ethical challenges for us all.

I have a couple of questions, some having been answered already, on jurisdictions that would be an ideal model. Ms Merrigan, I think, mentioned the UK, New York, whose bill of rights I will look up, and Greece. What violations might children born through surrogacy face if international surrogacy is not regulated? What age do the witnesses think is suitable? Do the witnesses wish for the legal guardianship to continue past the age of 18 years? Would they want to see that go to 21 or 23 years? Is there a specific age to which they would increase that?

Professor Conor O'Mahony

The risk of not regulating international surrogacy and the violations of children's rights would occur would be that we would continue the scenario we have currently. It is as simple as that. At the moment, we have no laws at all on international surrogacy. If we leave that out of the Bill, we continue the current unsatisfactory situation.

Age and the extension of guardianship is a complicated thing. Guardianship is not something that arises only in the context of surrogacy or donor-assisted human reproduction. If you were to rethink guardianship, it would be a much broader family law reform measure. That is probably not the way to think about it. The way to think about it is about trying to secure parentage as being the model for as many people as possible because parentage is a lifelong status. Guardianship is a different kind of thing. If you were to start reforming guardianship, it is not something that is limited to assisted human reproduction; it is much wider.

Mr. Gearóid Kenny Moore

Professor O'Mahony has outlined the issue around extending guardianship. I would like to address the damage done to children as a result of not being legally recognised as the children of both their parents or their intended parents. Earlier, we discussed a significant number of matters around medical issues, foreign travel, accessing passports, tax and inheritance, so we have addressed a significant number of the issues that occur daily for our families. What we have not had an opportunity to think or talk about is how our children are classified as inferior to the children who live next door to them because, although they are born typically to married parents, they are considered to have only one parent.

On a personal level, my children are very young. As I mentioned, our oldest twins are three and a half years, yet they are already starting to realise some of the differences between them and the families around them. They have already recognised, obviously, that they do not have a mother, but as life goes on they will see scenarios where their family is treated in an inferior way. If we want to go on a family holiday and my husband is already abroad, I will need a letter from him to bring my children out of the jurisdiction. They will see scenarios where I will have to tick the guardian box on certain application forms rather than the parent box. There will be all sorts of subtle differences that emerge as the children grow older. As they get older, their understanding and perception of those differences will become very tangible and real.

It is my belief, having grown up as a gay man in the 1970s, 1980s and 1990s, when it was illegal for me to be gay, that when you are treated by the State as an inferior person, you actually take on certain disadvantages, either emotionally or psychologically, from being treated in a second-class, different or inferior way. Even though the differences for our children are probably less pronounced than those that existed for me as a gay man, they do exist, the children will be aware of them and they will, I believe, have an impact on them. The level of impact has never been quantified but it will have an impact on them for them to know their family unit is valued somewhat less by the State than other family units around them. I cannot quantify it other than the examples we have given but it is definitely a real scenario that has been addressed by psychologists over the years. When you label somebody as different and inferior, it does impact them.

Senator Sharon Keogan

Guardianship, and I speak as a foster mother, does have challenges. Even to go outside the jurisdiction, to go up North, you have to have permission to take the child out of the Irish jurisdiction, so it can be difficult. How are the birth mothers of the surrogates looked after emotionally after giving birth to a child?

Chairman

I need to ask people to be brief because we have one other speaker and I want to give some time for concluding remarks. I see Ms Wheatley has her hand raised.

Ms Cathy Wheatley

I thank Senator Keogan for her question. When we were deciding where to go to create our family, we looked at the clinics and the countries which had the best protections in place for the surrogate. One of the things that we also worried about was that psychological impact on the surrogate. There is the physical act of giving birth and one’s brain, emotions and everything need time to catch up with that. We chose a clinic which offered support to the surrogate after she had given birth. It was very important to us that she had access to counselling before and after birth, if she needed that. I have been told that some surrogates do not wish to avail of this but it was very important to us to safeguard the fact that if she needed it, there would be support there for her.

Chairman

Does Mr. Kenny Moore wish to comment briefly?

Mr. Gearóid Kenny Moore

I will give a quick example. Our children were born in the UK where surrogacy legislation exists. That enabled the hospital to enact certain procedures for the birth of the surrogate child, such as offering the surrogate a separate room post birth, for her recovery and a separate midwife to visit her at home. In Ireland, because there is no surrogacy legislation, the person who gives birth, no matter what the circumstances are, is the legal mother. As a result of that she is forced to stay in the hospital until her child can be discharged and is forced to stay in the general ward for recovery with the child in a crib beside her, which some surrogates are very comfortable to do but some do not want. We have already spoken to the HSE on this and they cannot and do not enact separate policies and procedures because it is simply not on the legislative books. The lack of legislation means that the surrogates are forced to take on roles in the hospital setting they often do not want to take on.

Chairman

I thank Mr. Kenny Moore. We will move to our final speaker now, Deputy Dillon.

Deputy Alan Dillon

I thank the Cathaoirleach. First, I thank all the witnesses today in what certainly have been very informative, engaging and personal contributions from many of those in attendance. For those who see surrogacy as their only option in creating a family, this is an area of great importance which I fully support.

Last year I was exposed to the whole international surrogacy issue when a couple within my constituency were looking for support to access an emergency travel certificate from the Department of Foreign Affairs, with the whole process around DNA testing which had to be done before the certificate was issued, combined then with the legal documentation. That took six to seven weeks where both parents were abroad with their family at home. That created significant anxiety and uncertainty about bringing that newborn child back into Ireland and to a loving home. The emotional strain which that caused this family, in what should have been a joyous occasion, was something that stood with me. That happened last year and I am glad we have our invited guests here before the committee to continue the discussion on this topic.

On the proceedings for a declaration of parentage, can I hear a personal account or more information as to what that actually consists of? As I do more research in this area, I receive a real understanding of the complexity and process in respect of what needs to be overhauled. Professor O’Mahony spoke about different frameworks but I am sure these frameworks expand into the Departments of Justice, Health, Foreign Affairs, and Children, Equality, Disability, Integration and Youth. What would our witnesses like to see, or are the immediate short- or long-term legislative changes that are needed as we look towards furthering or strengthening our legislation in this area, which at present creates a very significant vacuum for many families? What are the expectations they have in this regard?

I compliment my colleague, Senator Seery Kearney, on her work to date within our party as she has been to the fore on this topic. I would like to gain an understanding on this from our witnesses' point of view.

Chairman

I thank Deputy Dillon. As Ms Merrigan had indicated I will bring her in first but I wish to say to all of our witnesses that apart from answering those questions, if there are any concluding remarks or if there is anything they would like to say but have not had the opportunity to do so, now is the time. I will give everyone some individual time for that. We will start with Ms Merrigan and we will then have Professor O’Mahony..

Ms Ciara Merrigan

I thank Deputy Dillon for the question. The priority for Irish Families Through Surrogacy is the children that are here now, our children, those that are in the State. We are looking first for that pathway to parenthood for our own children and that this be done as a matter of urgency.

Second, we are looking for that ethical framework and for those safeguards to be put in place to safeguard everybody who will be involved in the process, namely, the child, our surrogate, and ourselves, the intended parents. I thank the Chair.

Chairman

I call Professor O’Mahony now, please.

Professor Conor O'Mahony

I thank the Chair. My answer to this question will probably double up neatly on what I would have said in my closing statement in any event, which is that I do not like to think of this so much in respect of a sequencing of priorities because the risk with that is that we end up doing things in a piecemeal way. This is the opportunity that we have been waiting on for too long in order to address this in a holistic way and to do everything, not just to do some of it. It has taken us years to get to this point. Deputy Bacik made the point earlier on that she was on a committee many years ago at this stage, 15 years ago, looking at this issue and it failed to get it done.

The Children and Family Relationships Act 2015 failed to get everything done. We had a Supreme Court decision in 2014 in which the Attorney General made a commitment to the Supreme Court at that time that the Oireachtas was planning on legislating to address these issues. That has still not happened. My real sense of all of this is if not now, when? Anything that gets left out now could stay left out for an awfully long time. The real message I want to leave the committee with is that we cannot afford to decide that certain things are for now and certain things are for later because later could be a considerable time later and all one is doing then is replicating the same problems that we have been storing up to now. As this is a chance to do everything, we need to have a holistic Bill that covers all of the angles.

Chairman

I thank Professor O’Mahony. Do any of the other witnesses wish to come in to say anything they feel they may not have had the opportunity to say or if they have any concluding remarks?

Mr. Gearóid Kenny Moore

I wish to thank everybody for giving us the opportunity to speak. We, Irish Families Through Surrogacy and Equality for Children, are groups that were set up as entirely volunteer-led organisations to raise the profile of our families and to get this issue resolved. For us, getting this opportunity to tell our stories in this format and forum is greatly appreciated. As a group we work very hard. We are all full-time parents and many of us have full-time jobs. We do a great deal of work late at night, exchanging emails and making calls well after 9 p.m. and 10 p.m. We would greatly appreciate any support that the committee could offer us in furthering our cause.

I would like to ask one short question of Professor O’Mahony, if that was possible, on an issue that was raised by Senator Seery Kearney on retrospective provisions for children already born. He has already clarified that identity and donor information will not be a criterion for retrospective recognition to be applied but will any other criteria apply? What about the children who were born abroad to Irish parents who only ever come here on holidays? Will they be recognised? What about the children who are now aged 18 years or over? Will there be an opportunity for them to be able to establish a legal connection with their parents? Is it the case that any children who were conceived before a certain date will automatically get their retrospective allocation of links to their parents, regardless of the conception method, the location of their birth etc? I think it would be beneficial to have a short input from Professor O’Mahony, and from anyone else who is willing to make a contribution, just that we might understand how that retrospective piece might work.

Chairman

I need to point out that with committees, witnesses are not supposed to ask questions of each other. It is supposed to be the members of the committee engaging directly with witnesses. Much of what has been raised by Mr. Kenny Moore may pertain to the new committee on surrogacy. I am unsure if Professor O’Mahony may wish to come in very briefly on any of those points.

Professor Conor O'Mahony

I would direct Mr. Gearóid Kenny Moore to page 43 of my report. It sets out the criteria: the best interests of the child, full consent of the parties, compliance with local laws in the jurisdictions involved and things of that nature. It is set out in the report on page 43.

Chairman

I thank Professor O'Mahony. I call Ms Wheatley.

Ms Cathy Wheatley

I want to conclude by saying our children deserve to be equal to every other child in Ireland. We feel our children cannot be discriminated against because of how they were conceived. A child is a child no matter how he or she was conceived. They need to be afforded the same protection as every other child in Ireland.

Chairman

I thank Ms Wheatley. On behalf of the committee, I thank everyone very sincerely. It was a really good discussion, and very interesting. As these are public hearings, it will be good for people who do not understand many of the issues even to hear some of the day-to-day challenges, such as hospitalisation and vaccines. People would not even think about that. It is something many parents take for granted and would not even think twice about. When you give practical everyday examples such as that, it resonates with people.

As I said earlier, it is very emotional. It is not easy to come into a public forum and share your story. It is not something that anybody probably envisaged doing, both in terms of the witnesses' own children and being excellent advocates for them

In terms of our work, there will be another Dáil committee specifically in relation to this topic. This was a good starting point for some of that work for all of us to learn from. It is hoped that work will get started fairly soon.

I sincerely thank everyone again. I agree to a certain extent that much of the talk has to come to an end soon and there has to be action. Given some of the significant stories of people with medical issues or cancer in the family right now, they and their children need answers. It is relatively early in 2022. It is to be hoped this will be the year when we will see action. There is a real sincerity, particularly in this committee. Everybody is very much on board and wants to see this happening.

I thank everyone for their time and for the engagement with all of the questions and answers. Is it agreed to publish the opening statements on the Oireachtas website? Agreed.

The joint committee adjourned at 5.22 p.m. sine die.