Léim ar aghaidh chuig an bpríomhábhar

Joint Committee on International Surrogacy díospóireacht -
Thursday, 28 Apr 2022

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

We have two sessions today. In the first we will look at the particular issues faced by same sex couples, both male and female, in entering international surrogacy arrangements and achieving parental recognition. On behalf of the committee, I welcome Dr. Lydia Bracken, assistant dean for equality, diversity and inclusion in the faculty of arts, humanities and social sciences of the University of Limerick, who will be joining us via Teams, and the representatives from Irish Gay Dads, Mr. Gearóid Kenny Moore and Mr. Shane Lennon, whom I thank for attending.

Before we begin, I have a note on housekeeping matters and another on privilege. Witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

For witnesses attending remotely from outside the Leinster House campus, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings a witness who is physically present does. Witnesses participating in this meeting from a jurisdiction outside the State are advised that they should also be mindful of their domestic law and how it may apply to the evidence they give.

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

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

I invite Dr. Bracken to make her opening statement.

Dr. Lydia Bracken

I thank the Chairperson and members of the committee for the opportunity to share my views on international surrogacy and the particular issues faced by same-sex couples who engage in this process.

Ireland has made progress in recent years in recognising the rights of children who are raised by LGBTQI+ parents but a number of gaps remain. In research that I conducted with LGBT Ireland in 2021, 53% of the LGBTQI+ parent families captured by the research were not fully recognised under Irish law, which means that both parents were not recognised as legal parents. Similarly, in more than half of the families the two parents were not recognised as joint legal guardians of their children. The research indicates that the Children and Family Relationships Act 2015, which regulates the area of donor-assisted human reproduction, DAHR, embraces a variety of new and non-traditional family forms. However, many other families fall outside of its parentage provisions. This leads to a situation where legal recognition of family relationships in LGBTQI+ parent families is dependent on the mode of conception of the child, which is how the child was conceived, and as a result many families cannot secure full legal recognition.

In my research, 13% of total respondents to the survey indicated that one or more of their children were born through surrogacy. All of these respondents were male and parenting with their male partner. Due to the absence of surrogacy legislation, only one of the fathers was legally recognised as a parent in each family.

In my research, no female couple reported that they had engaged in surrogacy but it is likely that some female couples engage in this process. Instead, in my research, DAHR was the most common pathway to parentage among female couples. However, in only 50% of families were both of the parents legally recognised. This was due to the fact that a number of DAHR approaches are omitted from the 2015 Act. Perhaps of most relevance to this committee is the omission of DAHR that is undertaken abroad. If the procedure takes place outside of the State, the parentage provisions in the 2015 Act do not apply and instead parentage is allocated in the same way as any other conception. This also occurs where the child is conceived by DAHR in an Irish fertility clinic but born outside of the State. Other pathways that are omitted from the 2015 Act are non-clinical DAHR procedures and retrospective procedures where a known donor was used. Given that this committee will examine the question of retrospective recognition of parentage in surrogacy, it will be important to ensure that any legislative response is consistent with the DAHR legislation. This will require amendments to the 2015 Act because at present children born through some DAHR methods are legally disadvantaged based on their method of conception when compared with other children born through DAHR. Also, many children of LGBTQI+ parents are legally disadvantaged when compared with the children of married opposite-sex couples.

In international surrogacy, the issues experienced by same-sex couples are broadly similar to those experienced by opposite-sex couples. However, same-sex couples have more limited options in terms of where they can access international surrogacy as some foreign jurisdictions are only open to married opposite-sex couples.

  Ireland cannot regulate surrogacy that is undertaken abroad and it cannot control the ethical or human rights framework that is adopted in another jurisdiction. It can control the recognition or establishment of legal parentage for the purpose of Irish law. In doing so, the key question should be whether the law and practice in the country where the surrogacy took place provides ethical safeguards that are at least equivalent to those provided in domestic law but not necessarily identical to the Irish framework. Increasingly, the language of human rights is used as a proxy for ethics in discussions about surrogacy. As such, in searching for an ethical surrogacy framework, it is useful to frame this in terms of upholding the human rights of all participants.

There are a number of provisions of the Health (Assisted Human Reproduction) Bill 2022 that are problematic in their current form and I have detailed some of the issues in my accompanying briefing document. While some of these issues are more relevant in the context of domestic surrogacy, it is necessary to consider these as it seems likely, based on the experience of other jurisdictions, that an overly restrictive or poorly defined domestic framework for surrogacy will deter intending parents from engaging in the domestic process and instead encourage them to engage in international surrogacy.

To accommodate the diversity of families that exist in Ireland in 2022 there is a need to think about different ways to conceptualise family relationships. In surrogacy, the law should avoid an overly rigid approach in its regulation of family relationships. The must remain flexible to ensure that the best interests of the child can be assessed and secured on an individualised basis.

I thank Dr. Bracken for her contribution and invite Mr. Kenny Moore to make his opening statement. He will split his time with Mr. Lennon.

Mr. Gearóid Kenny Moore

I am here today, alongside my colleague and friend, Mr. Shane Lennon, to provide the committee with the perspectives and insights of the Irish Gay Dads organisation, and share our lived experiences.

I will briefly remind members of a few of the key facts that I outlined at last week's committee session. First, the organisation was created to give gay men who were interested in becoming parents, or those who are parents already, the opportunity to exchange ideas, information, experiences and build friendships. Second, the options for Irish based gay male couples who wish to have a child through surrogacy are very limited. Typically, our members become parents through gestational surrogacy in the United States, Canada or the United Kingdom.

What is life like for a gay male parent? Personally, I do not feel that there is one difference in how we parent compared with any other family. Like all parents, the well-being of our children is everything. My husband, Séamus, and I literally build the plan for each day around our three children who are called Mary, Seán and Anne. We put their needs and wants at the centre of everything that we do. We think of our children as the three most special people on this planet. They are considerate, kind and vibrant little people who carry giddy smiles and have imaginations that can turn any object into the most advanced aeroplane or doll's house.

Socially, Ireland is a great country in which to live as a gay dad. When Séamus and I bring our children to the local shopping centre or park people often approach us to say hello. Our experience of such encounters has been 100% positive. We have never encountered inappropriate questions, rude comments, labelling or stereotyping. That is not just a Dublin thing. I grew up along the border of Tipperary and Offaly and I will never forget the night of our first visit home following the birth of our children, Seán and Mary. We sat at my sister's kitchen table and we were surrounded by family, friends and neighbours, many of whom are quite elderly, and each of them with presents, knitted goods and food. All of them were there to celebrate the arrival of our two babies. I believe that this goodwill that we enjoy is not unique to me or my family. Let us remember that when the constitutional convention was called to discuss the idea of giving Irish citizens an opportunity to vote on same-sex marriage, an additional vote was taken on changing the laws around parenting to equally include the children of gay and lesbian families.

Eighty-one of the 100 delegates present that day voted in support of this motion. The Irish people are very surprised to learn, when we explain it, that the legislation families like us need has yet to be passed.

As I outlined last week, this lack of legislation affects our ability to parent and protect our children in many areas such as accessing education, welfare supports, medical treatment etc. We have outlined these issues in detail within our written submission. Therefore, I will not revisit them today. The above issues, however, pale into insignificance when it is considered what might happen to a child, if his or her biological and legal father were to pass away. Can the committee members imagine being in this situation, as the surviving non-recognised parent? You have just lost your husband and now you have to spend time focusing on how you are going to keep custody of your children. While, of course, that thought does not guide me in my everyday life, it does sometimes come into my mind. When that happens, I just freeze.

I would like to highlight the core elements of the surrogacy model for which Irish Gay Dads advocate. These elements include, first, ensuring all children are treated equally in the eyes of the Irish law, regardless of the method of their conception, pregnancy or birth. Second, we focus on prioritising the well-being of surrogate mothers. We want to ensure they are provided with access to independent medical, legal and psychological supports before making any decisions to proceed, while ensuring their bodily autonomy at all times. Third, we want to ensure children born through surrogacy have access to information regarding their genetic and gestational origins. Fourth, we need to ensure the intended parents are treated equally by providing pre-birth determination in relation to parental rights. Finally, we wish the State to provide retrospective legal recognition of the children who have already born through international surrogacy. We feel this is Ireland’s opportunity to be a world leader, to recognise the diverse and evolving nature of modern families, and to legislate appropriately. I ask the committee members to please use the positions they have been given to act on behalf of the parents, families and surrogates we represent and all those same-sex female couples who have thus far been omitted from the Children and Family Relationships Act. I thank the committee members for their time.

Mr. Shane Lennon

I am delighted to attend this morning’s committee meeting. It is an honour and privilege to have the opportunity to speak with the committee today on behalf of Irish Gay Dads. I sit here with the committee today quite literally as a result of modern family planning, for I myself was born by IVF. In fact, I was one of the first children in Ireland to be born via IVF. Growing up, I and my brother knew how wanted we were and the struggles faced by our parents to conceive. Our mother would routinely tell us how, in her mind, her life really only began when she had children. After nearly ten years of failed pregnancies, miscarriages and near death, my parents welcomed me into this world. Therefore, as we celebrate 35 years since the first treatment took place in St. James’s Hospital, marking the beginning of the creation of tens of thousands of families throughout the country, I feel it quite apt to be speaking to the committee today as we debate the need to legislate the next progressive steps in Irish family planning.

My husband, Carlos, and I met some 12 years ago, and from day one we discussed our desire to have a family. In 2015, the same-sex marriage referendum created the first opportunity for our relationship to be formally recognised in Irish society and for us to be considered a family unit under Irish law. We married in 2018, thus creating the first foundation of our family. Since then, we have moved to create a life that could support our ambition to grow our family. It is an innate human desire to want to have a family, to raise a child and to create a higher meaning in one’s life. This innate desire does not go away. It is not selective to only some people but to us all, no matter our fertility, physical ability or sexuality.

Article 41 of Bunreacht na hÉireann sets out that it is my fundamental right as an Irish citizen and as a married person to make my own decisions when undertaking matters in relation to family planning. If marriage is the foundation to our family in our legal system, how can the same legal system not support the growth of my family? Without legislation to enable me to create a family, I am in a dichotomy of paying to be part of an Irish society that does not allow me to reap the benefits of same. How is it right that, in the eyes of the Revenue Commissioners, I am equal, the same as my friends and neighbours, but when it comes to my fundamental right to grow my family, I am prohibited?

Irish relationships and families are no longer being created in the traditional chronological order of yesterday, when one would meet someone, marry, buy a home and create a family. Men and women are meeting later in life and coupling later. More and more women are entering the workforce and focusing on their careers, as is their right. The new chronological order of creating a family is multifaceted. Thus, we are only going to see an increasing number of the population looking to assisted human reproduction, AHR, solutions in creating families. This includes international surrogacy.

The AHR Bill is, in my opinion, the single greatest advancement in Irish family planning since the creation of the State. It would be a travesty not to include international surrogacy in this historic Bill. I implore the committee to take action to make sure the vast majority of families created via surrogacy are not left behind and are not left to be second-class citizens in their own country.

I thank both witnesses for coming in and telling their stories. I know how difficult it is, but it is so important for us to hear their experiences so that we can take them into account as we move forward. I thank them for that. I will now move on to the questions.

I thank the Chair and I thank our witnesses. I have specific questions for each of them, so I will go into that.

Dr. Bracken has published extensively in this area and I am a proud owner of two of her books. I have two points to raise with her, the first of which is the position of the European Court of Human Rights, ECHR, decision, particularly the one in France. In that regard, it is an advisory opinion. What is its standing in the Irish context? Is it open to this committee to recommend that we ban international surrogacy because of the commercial element to it or is it open to this committee not to provide a pathway for parental recognition of the second parent? Is a second parent in this State entitled now to take a case against Ireland on the basis of the failure to create that legal parental relationship? Is that open to a person in this State to take that case against Ireland? My personal contention would be that the failure to implement a framework is akin to burying our heads in the sand.

The second issue concerns parentage order versus guardianship. On some of the sanctions, we have talked with Professor Conor O’Mahony about a carrot-and-stick approach and trying to get people to engage in domestic surrogacy and to incentivise that, but that international surrogacy will occur. In that, there may be implied issues or difficulties. One of the issues that hang over us is that we would not award parentage orders in a situation where maybe all of the boxes are not ticked. Instead, it would be mere guardianship. However, the point of parental orders is that they are akin to adoption and so sever the obligations and duties on the person who gave birth as surrogate mother in these instances. Therefore, if we merely employ guardianship, then we have the difficulty that she remains with all of those obligations in Irish law. Does Dr. Bracken have any suggestions or thoughts of what would be a sanction or a penalisation on that?

Mr. Kenny Moore and Mr. Lennon are very welcome. I am very grateful for their extremely valuable experience and their sharing with us the failure of the Legislature.

It would be shameful if we continued to fail families formed via surrogacy.

A significant point from Mr. Kenny Moore last week and Mr. Lennon today comes from their sharing of the fact that when gay couples meet, they have the same conversations as everybody else about whether they will have children together. I am not sure that everybody considers how that innate desire to have a child is not dependent on sexuality or gender but it is about wanting to nurture. It is something in the human spirit that wants to do that.

Last week, Mr. Kenny Moore spoke extensively about the pre-pregnancy position and depths into which the Canadian system goes. This relates to the due diligence and high standards employed and the submission is extensive. Point No. 4 goes into evaluating destinations, providers, clinics and agencies and ensuring consent, so perhaps he could elaborate on that. I will hold off on other questions until the second round.

Dr. Lydia Bracken

I thank the Senator for her questions. She asked about the European Court of Human Rights, ECHR. The case law from the European Court of Human Rights is primarily Mennesson v. France, which essentially established that where there is a genetic relationship between an intending father and the child and where that father is also listed on the foreign birth certificate as the legal father, an obligation arises to legally recognise that relationship on the basis that it would be a violation of the child's right to private life if it was not recognised within domestic law. That kind of set the initial standard for what types of relationships need to be recognised.

It was followed in 2019 by an advisory opinion on gestational surrogacy, which again was issued to France in a case concerning the same Mennesson family. Although the father was recognised in the case, the intended mother had not been recognised initially at least. The question was whether that relationship also needed to be recognised. The advisory opinion set out that in order to vindicate the rights of the children, the relationship between the children and the intending mother, where she is listed on the birth certificate in a position where she is married to the intending father, who has already been recognised for the purpose of domestic law, another duty of recognition arises based on consideration of the rights of the child.

The status of the advisory opinion is that it is not binding and it is an optional mechanism that states can enter into in getting guidance and advice in how the ECHR case law might operate. However, I have published on this and given the opinion that it establishes the standards that the court would adhere to. If a case was to be brought against Ireland on this matter, it is quite likely, based on the standards set in the advisory opinion, that we would be found lacking because we do not currently have a mechanism that would recognise the relationship between an intending mother and the child in the way the advisory opinion requires us to do. Something like guardianship does not meet the standard because it is not a permanent relationship and it does not have the same status as that of legal parentage. On the question of whether we could ever prohibit surrogacy, we could not do that based on the jurisprudence from the European Court of Human Rights because we have the obligation to recognise certain parent-child relationships in order to vindicate the rights of children. I hope that answers the question on ECHR case law.

The Senator mentioned parental orders and guardianship and referred to "sanctions". It is probably not the most accurate description of what it would be. It would essentially be the fallback position if parentage cannot be recognised for whatever reason. In the proposal I have put forward in the briefing document provided to the committee, I have suggested that we should ultimately get to a position whereby parentage established on a foreign birth certificate would be recognised in Ireland, whether it is by way of a parental order being recognised or some other, possibly administrative, mechanism to recognise that parentage unless it is fundamentally contrary to Irish public policy. When we are determining what public policy means in the context of surrogacy, we need to establish an ethical framework for surrogacy within Ireland and we would determine any cases by reference to that or if it would be in the best interests of the child to deny that recognition.

If parentage cannot be established for whatever reason, we must put in place a mechanism that does not penalise the child. Allowing guardianship to be awarded at least accommodates the child's rights in that regard. Based on ECHR case law, a genetic relationship would need to be recognised regardless of whether the procedure falls outside the agreed ethical framework. We must consider the child's rights in that regard. Ultimately, in a particular case the decision must come down to what is in the best interests of the child and whether guardianship or parentage would be most suitable in that regard. That is what I see as the kind of fallback position. It really takes a case-by-case or individualised approach to ensure the best interests of each individual child are being maintained within the process. I hope that answers the Senator's questions.

Although we have gone over the allotted time, I will allow Mr. Kenny Moore and Mr. Lennon to respond. I will also be flexible with other members as there is flexibility in the schedule.

Mr. Gearóid Kenny Moore

Mr. Lennon is currently in the middle of a surrogacy journey so he is in a strong position to speak about due diligence.

Mr. Shane Lennon

This was dealt with in our submission as well. The Senator spoke about evaluating a destination and as a gay man, there are not many destinations available to me. The United Kingdom is one and there is also the United States of America and Canada. I have chosen to look at Canada for several reasons. I wanted to align to the guidelines issued by the Department of Justice to people undertaking international surrogacy. I am also considering the welfare of a surrogate mother, ourselves and the child who will be created. It is important to understand all those elements. There are also legal entities available there. In the Canadian example, every step of the process is legalised and managed by registered third parties, whether they are IVF clinics or agency staff taking care of surrogate mothers. The rights of everyone are very clearly stated from beginning to the end. It is why we are talking to the committee today because that is what everyone wants. Nobody wants to work in a grey space and the easiest way for us to have a child is still very complicated. Normal people are doing this. They do not have legal minds or backgrounds and they may not have a medical background. They just want to be a parent.

One of the main aspects I have considered is ensuring the surrogate mother has, I suppose, means to live outside any reimbursement made to her. The whole process should be welfare-focused and everybody should be taken care of, getting independent legal and psychological advice, with emotional support available throughout. That is the only way I would feel comfortable about doing anything. It is about protecting the surrogate mother, who is giving an enormous gift in doing what she does. The reward is never financial for anyone. A surrogate mother might do this because she knows people who have gone through IVF or fertility issues. Her heart is in the right place for doing it.

These are some of the key pieces. It is helpful for the surrogate mothers to know that because of the surrounding legislation, they would not be obliged to have any kind of legal relationship with the child. They do not want to have that. The intending parents, which are me and my husband in my case, want that obligation and legal process in place for us. We want to be legally recognised, having both that gift and the obligation. We do this knowing that when we return to Ireland, we have worked to some framework that we can present to the courts.

Does Senator Seery Kearney want Mr. Kenny Moore to come in on that?

No. There will probably be a second round.

I welcome Mr. Kenny Moore and Mr. Lennon here today. We had met with Mr. Kenny Moore. We have all seen that getting proper legislation and a proper framework for everybody is very important. I have listened to their stories. They are hard because families are affected by this. Having read the stories of Mr. Kenny Moore and Mr. Lennon, I feel we need to get this legislation done as soon as possible. That is the main thing for me. It is so important. Every child is equal. They go to school together and play together. That has to be and is what we are absolutely committed to doing.

Senator Seery Kearney is on top of her brief on this and has asked many of the questions I was going to ask. Mr. Kenny Moore spoke about his lovely children and we spoke about birth certificates. Travel documents have to be a huge issue. We see how trying to get birth certificates for children at present is an absolute nightmare. The witnesses might get back to me on that one.

Many of my questions about the different areas were answered. The US, Canada and England were spoken about. Mr. Lennon is going through surrogacy in Canada. I wish him the best. It is unfortunate that we do not have a proper framework and legislation here but I will give Mr. Kenny Moore and Mr. Lennon my full support. I thank them very much.

Mr. Gearóid Kenny Moore

I echo the Deputy's point that legislation is needed as soon as possible. That must also retrospectively cover children already born. With regard to travel documents, Mr. Lennon and I are here to represent parents who primarily access surrogacy through Canada, the United States and the UK. As the process is covered by legislation in Canada and the United States and everybody's rights and responsibilities are clearly defined, the parents can apply on behalf of their child when it is born for a passport from those two countries.

A newborn child can return home from the UK on the basis of its birth certificate because of the travel arrangements between Ireland the UK. Provided the parents carry appropriate travel documents, they can come back to Ireland with their newborn baby on the basis of the child having a birth certificate. What happens when the child gets back here to Ireland? That is where it gets tough because there is no legislation unlike in the three destinations I have mentioned.

If the parents wish to apply for an Irish passport for their child, the application will proceed on the basis of the father having a genetic link to his child and he will become the applicant. The surrogate mother, if the application is made before the declaration of parentage has been applied for by the father in the Irish courts, will also have to sign the passport application. That causes significant complexity.

As Mr. Lennon alluded to, surrogate mothers in our experience enter these agreements and arrangements with full consent. They know exactly what they are being asked to do by the intended parents and what they wish to do for them. They do not want to be the mother of these children or to have legal responsibility for them. They want that to be applied to the intended parents. When they are asked to sign passport documents, it often causes them anxiety because it suddenly seems the State is coming back to them to say they are the mothers.

When the application is made here for an Irish passport, it has to come from the biological dad. If the declaration of parentage has not gone through the court system, which is often the case because it can take a long time, the surrogate mother will be required to co-sign that application. She will be contacted by the Passport Office in order to verify that she has signed the application. She is the second applicant.

Does the Deputy have any other questions?

We will try to see whether Senator McGreehan is back online.

I think she is at another meeting. There are two meetings. We are at both events. I am sure she will be in later on.

We will come back to her.

I have a few questions for Dr. Bracken. She has obviously spent much of her career on this subject. She is the author of two books. I will ask a question about her book, Same-Sex Parenting and the Best Interests Principle. Chapter 6 of this book examines the allocation of parentage in cases of surrogacy. The chapter seeks to identify a way to regulate surrogacy that adheres to the best interests principle and balances the interests and needs of all stakeholders in the process. It is suggested that the intention-based model of surrogacy which is facilitated through a pre-conception allocation of parenting satisfies the requirement of the best interests principle. Will Dr. Bracken explain that to us?

Dr. Lydia Bracken

The Senator's question was on the pre-conception model of parentage and why I believe that is the most appropriate way forward. Chapter 6 of the book the Senator mentioned focuses on domestic surrogacy. I support a pre-conception allocation of parentage in the context of domestic surrogacy. However, in the context of international surrogacy, a post-birth transfer of parentage is probably most appropriate. I can talk about that later if that is of interest.

The pre-conception approach to domestic surrogacy is the best way forward because it balances the rights of everyone. A post-birth transfer of parentage in a domestic context means that when a child is born, the intending parents do not have the legal rights and responsibilities that they need to care for the child, despite the fact that they will take physical care of the child very soon after the birth. Instead, typically, the surrogate mother is regarded as the legal mother upon the birth of the child which means she has the rights and responsibilities for making all of the decisions for that child until the time a parental order is made. This is the proposed way that parentage would be transferred in the Health (Assisted Human Reproduction) Bill 2022. It means that if the child needs medical treatment very soon after birth, the surrogate would probably need to consent to that rather than the intending parents. That can place the surrogate in the very uncomfortable position of having to make this kind of legal decision on behalf of the child. The Health (Assisted Human Reproduction) Bill 2022 proposed there would be a transfer of guardianship to the intending parents by way of a statutory declaration with the surrogate after the birth of the child. That can alleviate some of those difficulties but it seems there would still be a delay in terms of the intending parents getting the legal rights and responsibilities they need to undertake the caring role.

It also creates difficulties for the surrogate by being regarded as the legal parent. Perhaps it places her in a vulnerable position.

Under the 2017 general scheme, it was possible for either a surrogate or the intending parents to make the application for the parental order, which would ultimately transfer parentage to the intending parents. Under the 2022 Bill, only the intending parents can make that application, which is unusual because in the rare situation where the intending parents fail to make the application, the surrogate seems to have no recourse other than placing the child for adoption. For all those reasons, a model that allocates parental responsibilities based on the intentions of everyone involved, which is that the intended parents will raise the child, and having that become effective at the time the child is born balances the rights of everyone in the way I mentioned. It ensures the child is legally integrated into their family from the moment of birth, that the intending parents have all the legal tools they need to undertake the caring role and that, at a time when they are busy caring for their newborn baby, they do not have to go back to court in order to facilitate the transfer of parentage. In that way it balances the rights of all participants, in the domestic context at least.

Does Dr. Bracken agree with the principle of the proposed AHR regulatory authority or some State organisation? Would she like to see that implemented in this country? An AHR federal authority was established in Canada with duties similar to what we are proposing in this country. It got abolished in 2013, I think for budgetary reasons. How does Dr. Bracken feel about having a regulatory authority in this country in relation to surrogacy?

Dr. Lydia Bracken

A regulatory authority is really important. It is important that we have a central body that can disseminate information on all aspects of AHR and take on various other obligations set out in the Bill, including licensing and so on. The dissemination of information is important so that everyone in the country is aware of what the AHR legislation says. It is a 136-page Bill so having accessible information from an authoritative source within the country is important. Having a central authority would be beneficial going forward and many countries have such authorities in place. For example, in the UK there is a Human Fertilisation and Embryology Authority, which does important work on setting the regulations in relation to various types of fertility treatment.

I welcome Mr. Kenny Moore back. I was touched by his statements last week. Of all the witnesses here, I was most touched by his contribution, by the relationship he has with the surrogate mother, by the relationship he encourages with the surrogate mother and by how he agreed to allow the birth mother to be on the birth cert. I am heartened to hear he agrees with that. There are many roads to parenthood and, as long as children are loved, cared for and feel secure, that is all that matters. He heard my statement last week and, unfortunately, a lot of exploitation goes on in this road to parenthood. How can we regulate against bad actors? We can make rules in this country but how can we protect surrogate mothers in other jurisdictions that are not covered by that legislation and where the mother is not protected by our legislation?

Mr. Gearóid Kenny Moore

I thank the Senator for her questions. In relation to my comments last week on the birth cert, in our case the surrogate mother is listed on our children's birth certs. That is because they were born on the UK where parental rights cannot be transferred until after the child is born and, therefore, the surrogate is legally obliged to be placed on the birth cert. As a couple who had children through the UK, we could not go through the parental order process that exists there. In order to do so, you have to be a resident, passport holder, citizen, etc. and we were none of those. That is the primary reason the surrogate is listed on the birth cert. Going forward, we ask members to consider that when surrogacy is the method of conception, the standard birth cert issued to the child would list the intended parents but that, if you wish to include the surrogate, it could be done through the long form of the birth cert, so the child can see clearly the method of conception and gestation.

I note the Senator's point about the level of exploitation. We all agree that legislation is the way to prevent exploitation. I dispute that it is extensive. I do not believe that to be the case. We in Irish Gay Dads work primarily through the United States, Canada and the UK, where the surrogacy model is extremely well established and has been in existence for over 30 years. Natalie Gamble, a legal expert from the UK, was before this committee two weeks ago talking about the fact she has handled 1,500 cases and come across about three or four that caused issues.

I dispute that the level of exploitation is extensive but I will address the point on bad actors. All of us, when we dream of having a child, want that child's birth story to be as perfect as possible. We want every party to the agreement to be acknowledged, included and protected. As I mentioned last week, no matter how much you regulate medicine or any sector, there will always be bad actors. All you can do is put together a stringent framework to ensure that every party enters into the agreement freely, gives consent and gets appropriate legal support and appropriate independent medical support, and that every party, including the intended parents, the egg donor and the surrogate, gets psychological support so there is no doubt in anybody's mind about what is about to happen, how it will happen or what the process will look like.

There has to be, as the Senator touched on in her questions to Dr. Bracken, an oversight body that regulates all the players. It would be the AHRA in Ireland and equivalent bodies in other locations. Anybody who participates in a surrogacy agreement, whether a clinic, a legal person or a medical person, has to be regulated and approved by that body. They are the safeguards. Not legislating will increase the possibility for bad actors; legislating is the way to lock it down to the maximum extent.

What does Mr. Lennon consider that the ethical safeguards might be for a surrogate mother?

Mr. Shane Lennon

The ethical safeguards for the surrogate mother are that there is total legal counsel from the start to the end of the journey; that she has independent counsel, including psychological counsel; that all the agencies involved - and there are surrogacy agencies to take care of the surrogate mother in many countries, such as Canada - have the surrogate mother's interest as the primary interest and the intended parent is second to the surrogate mother throughout the journey; and that the surrogate mother has total control of her own body and pregnancy throughout the pregnancy, including the decision to terminate. That should be her right. I think we are in agreement about that. It is about protecting her interests so she understands from the beginning, before any medical or IVF process starts, that everyone is clear and understanding of the agreement that she is choosing to carry a child on behalf of a couple. That couple will often want a lifetime relationship between that woman and the child, not as a parent or with parental responsibility but as someone significant in that child's life. Everyone would want that.

The ethical safeguards are those regulated, independent organisations such as lawyers, State agencies and psychological counselling, and that should be done throughout.

I am glad Mr. Lennon recognises the importance of the birth mother, particularly for Irish Gay Dads. It is important to me that the mother is safeguarded in some way.

Mr. Gearóid Kenny Moore

We are fully in support of the creation of a surrogacy register that will include the mother's details for the duration of the child's life, so that she can never be whitewashed out of the picture, a matter the Senator was concerned about last week. We are fully in support of that.

That is fine. I thank Mr. Kenny Moore.

The witnesses are all very welcome to the joint committee. Forgive me if I am doubling up on questions; I was attending another committee meeting earlier. In her research, Dr. Bracken states that both parents were legally recognised in only 50% of the families. She also said there were omissions from the 2015 Act. I would like to be clear in my head that in 50% of cases both parents are recognised and in the other 50% they are not. This sliding scale of family legal recognition is unacceptable. Will Dr. Bracken explain to me as a layperson how 50% of the families would get that recognition and 50% did not? The omissions in the 2015 Act mean we have legislated for differences. How will this affect the retrospective route to parentage? If there is time, I will contribute again.

Dr. Lydia Bracken

I thank the Senator for her question. In the research I undertook with LGBT Ireland last year we were looking at the structure of LGBTQI+ parent families and their routes to legal recognition. The families that were recognised, where there were two legal parents, had gone through a route to parentage that is recognised under the 2015 Act. Essentially, there are two main ways in which that can happen. If a family has their child after the commencement of the Act on 4 May 2020, there is a pathway to parentage that allows for two parents - they could be the opposite sex or the same sex - to be jointly recognised as legal parents provided they have used a fertility clinic within Ireland and all of the relevant consents and declarations and so on have been given. Provided they meet all of those criteria, on the birth of the child both of the parents are legally recognised as parents as per their preconception intention.

There is another primary route to parentage that recognises the retrospective parentage for children who were conceived prior to the commencement of the legislation, that is, before 4 May 2020. There is a retrospective route available to some families if they had their child before 4 May 2020 and they meet various other criteria, one of which is where a gamete donor was used who was unknown and remains unknown to the families. In order to get that retrospective recognition of parentage the family cannot have used a known donor. If families meet the criteria, they can be recognised and some 50% of families were recognised. Unfortunately, many other families fell outside of the criteria for various reasons, one of which being that they had used a known donor. Having prioritised their child's right to identity, they cannot achieve retrospective recognition.

As I mentioned, the legislation does not cover DAHR that is undertaken abroad, even if the child is subsequently born in Ireland, or vice versa. If the parent had DAHR treatment in Ireland and the child was born in another country, that again falls outside of the recognition. Those are the main ways in which families fall outside of the legislation. Also, if the family did not use a fertility clinic, they would fall outside of the legislation. That might be referred to as a non-clinical procedure or an at-home procedure. If the family had their child through that form of DAHR, they are not covered by the legislation either. Those are the primary omissions in respect of the legislation.

I have a question for Mr. Lennon and Mr. Kenny Moore. Dr. Bracken spoke about the incredible amalgamation of different pathways to becoming mammies and daddies. It varies from couple to couple, country to country, person to person and case to case. How best can the State help the witnesses, as parents, to become parents and move through the ethical surrogacy we want? We all want the best-case scenario, as Dr. Bracken outlined, and that identity. Parents who opt to have that identity known are almost being penalised for doing so. Should we extend the regulatory authority to become an information service? Is there a best-case information service in any other jurisdiction? Is there somewhere we can look to? What kind of information would be most beneficial for intending parents, such as the witnesses, who are on that pathway to international surrogacy?

I also have a general question with regard to the pathway and the lack of recognition prior to birth. Mr. Kenny Moore told a lovely story about bringing his twins home and his family surrounding his newborn twins. At that stage, those children had two daddies but legally they had no parents, in a way. Practically, how did that make Mr. Kenny Moore feel? How best can we change that, respecting the birth mother and her rights to bodily autonomy and to change her mind and the witnesses' right to be the parents they want to be in the grey area of birth and moving from the birth mother to the new parents? I am sorry if that is all very jumbled.

Mr. Shane Lennon

I can answer the first part of the question. I am very new to this. In three weeks' time I will be starting my IVF treatment. I understand the Senator's question was how best can the State help or support citizens in understanding. It does not need to be very complicated in the sense that most people searching or googling information will go to sites such as Citizens Information for everything. Right now, there is information there for people to understand. For anyone going through this process, it does not matter if we regulate it to the nth degree. It will always be slightly complicated, simply because there are so many parties involved. It is not just about two people. It is important to have a go-to source of information, whether that is the Department of Health or Citizens Information, that is very clear about what is the green pathway to surrogacy, domestically or internationally. Perhaps the regulator should be a point of reference rather than people having to email or call it to ask these questions. Citizens Information would be a great source for everyone to have that. It very clearly sets out the different steps because it really is a multi-step process. IVF is at the core of it and it was brilliant to be able to talk about this today. The Bill will catapult family planning for all Irish people. People will need assisted human reproduction information and assistance more and more as we move forward in life.

It would be good to have a clear framework such that a regular person could understand the steps they need to take and follow.

The Senator asked whether there was a similar model in other countries. While my husband and I looked at the US system also, the Canadian ministry of health makes clear the requirements that need to be met and the steps one has to take through surrogacy. It is stated in clear language that anyone could understand.

Mr. Gearóid Kenny Moore

I might take the second part of the Senator's question, about the reality of bringing children home once they have been born and the impact of not being recognised. For context, we represent parents who have had children through three locations, namely, the United States, Canada and the UK. In the United States and Canada, because of the presence of legislation, as soon as the child has been born the intended parents are considered the legal parents, whether they are an opposite-sex couple or a same-sex couple. That means they have the right, within the hospital setting, to make all decisions regarding the welfare of the child, such as what postnatal checks can be done, what blood tests can be carried out and so on.

In the UK, the situation is the same as in Ireland. The woman who gives birth is the legal mother and, therefore, she has to make all those decisions. That is the experience we had, whereby our children were born in the UK. I might talk a little about the emotional side of that and how it all feels. For the surrogate mother in our case, and for most surrogate mothers, it is a pretty difficult stage. They will have just given birth and will be recovering from that, they will have intended that the intended parents would be the parents of the child, and they will then be drawn into a process where they will have to make decisions about the child and how he or she will be treated in hospital. Even if those decisions are very standard ones, such as whether a vitamin K injection can be given or whether a blood sample can be taken, it still puts the surrogate mother in a position in which she never wanted to be. Imagine how complicated it then gets if the child has additional needs and needs to stay in hospital for a period. Potentially, the surrogate mother, even though she might be ready to go home, would be forced to stay in the hospital to be present with the child and to meet the legal obligations. That is not right for the surrogate mother.

From our perspective, having been in that situation, it deflates your bubble somewhat. You will be on this incredible high, as anybody who has experienced the arrival of one's child will know, and now you are being sidestepped. The nurses and doctors will be very busy and might say they cannot really talk to anyone except the surrogate mother, who can give that consent. It does not feel good. We knew all this in advance, having taken legal advice before we went to the UK so we knew what we were signing up for, but nonetheless, when it happens, it impacts on you and on how you feel about your position as a parent. One of my colleagues from Irish Families Through Surrogacy mentioned at last week's meeting that she felt like a bit of an actor sometimes as a parent. What I have described is a prime example of how you can made to feel like an actor.

As for what the State can do when you get back to Ireland in order to help you feel recognised, it can make the process as accessible as possible, that is, making the declaration of parentage as accessible and quick as possible and allowing for it to apply to both parents, not just the genetic one. As Mr. Lennon mentioned, it could be that certain locations and providers would be put on a green list, and if the process looks as though it has taken place properly and there are affidavits to declare that, perhaps the process could be short-circuited to allow the declaration of parentage to be proceed much faster than it currently does.

I thank our guests for their attendance and their presentations. My first questions are for Dr. Bracken, regarding children in Ireland who have been born through surrogacy. She mentioned them in her document. Will she expand on our responsibilities to them as legislators? The issue has gone on too long. A whole bunch of children are not recognised and that is not right, and we need to act on it. How does she foresee that playing out?

I have become fixated on the issue of pre-birth, post-birth or at-birth parentage. I will put my cards on table, as I have done since the start, and state my belief that the pre-birth model is the best one. Dr. Bracken stated that for international surrogacy, the best of the three is post birth but did she mean at-birth? For all the various reasons we consistently hear relating to potential medical issues and who will take responsibility for that, there are many difficulties in respect of post-birth parentage. I think that if there were a good system that operated correctly, the pre-birth model would be the way forward.

I might follow up with questions for Mr. Lennon and Mr. Kenny Moore. I greatly appreciate our guests being here and sharing their personal stories, and I wish the best of luck to Mr. Lennon on his journey.

Dr. Lydia Bracken

Regarding children who have already been born through surrogacy, I would strongly argue that issue needs to be prioritised in the legislation. Many children living in Ireland have been born through surrogacy and their family relationships are not recognised at present. They are left in the really undesirable position of not having a permanent legal relationship with both of their parents, so that absolutely needs to be addressed. I have proposed a model similar to that in sections 20 to 22, inclusive, of the Children and Family Relationships Act, which allows for retrospective declarations of parentage to be made in cases of donor-assisted human reproduction, DAHR, that were undertaken prior to the commencement of the legislation. Something similar in the case of necessary adoptions could be used successfully in the context of children who have been born through surrogacy. That would allow the intending parents to apply to court for this declaration of parentage to recognise either of the intending parents, or perhaps both of them, who are not at that point recognised as legal parents, provided certain proofs are given to the court. This appears to be a relatively straightforward process in the context of DAHR, so I would argue it should also be a very simple process for surrogacy in respect of surrogacy that has already taken place. As we have the model for it within sections 20 to 22, inclusive, of the Children and Family Relationships Act, that is the model I would propose for the retrospective recognition of parentage.

As for the pre-birth or post-birth recognition of parentage, I draw a distinction between domestic surrogacy, which can be facilitated through the pre-conception approach, and international surrogacy, for which a post-birth approval process makes sense, simply on the basis it would be difficult for the State to sanction in advance parentage that has been established through a procedure undertaken abroad. That is not to say it could not happen, and perhaps an application during the pregnancy would be possible, but the post-birth transfer of parentage in international surrogacy would allow the Irish courts to check that certain ethical safeguards have been adhered to throughout the pregnancy, up to the birth of the child. It is not a perfect system by any means, given it means that when the child has been born, for the purposes of Irish law he or she may not have that legal recognition in respect of the relationship with the intending parents. Nevertheless, what I have proposed is that where the intending parents have both been listed on the foreign birth certificate, we might have something of a fast-track application process in Ireland, whereby they could obtain a parental order recognising both of them as legal parents, and the application would be granted unless it were fundamentally contrary to an agreed ethical framework for surrogacy within Ireland. Having a post-birth judicial process would allow for scrutiny of the ethical standards to ensure we maintain the integrity of the ethical framework and ensure that recognition is based on it. Moreover, it would allow for consideration of the best interests of the child in that process. That is primarily why I believe a post-birth process in regard to the international arrangement would be the more appropriate way forward but in the case of domestic surrogacy, I would support a pre-conception transfer of parentage.

I thank Dr. Bracken. If we had more time, I would ask her further questions because I imagine that what she outlined would leave people in limbo in the context of medical decisions and so on post birth. Would there be any way of going down the pre-birth route but with a guarantee that if something were to go wrong, perhaps in the first few months, that could be changed? Unfortunately, we do not have time to go into all this but I wanted to put it out there.

A lot of complications arise if agreements are to be post-birth. We would still be stuck in the same kind of situation we are currently in, a situation we are trying to move away from. I will ask about the Canadian situation. I heard Senator Seery Kearney ask about it earlier. It was one of my questions because I have been looking into that area as well. Mr. Kenny Moore mentioned it last week and when he came before the Joint Committee on Children, Equality, Disability, Integration and Youth. Does he have any additional information on that? He also made a point about potentially having a surrogate listed on the long form birth certificate. Does he see that as an optional process because I am conscious that many surrogates would not actually want to be on the birth certificate and do not see that role for themselves?

Mr. Gearóid Kenny Moore

With regard to additional information on Canada, in the next couple of weeks solicitors from the Canadian system will be coming before the committee. They would be able to provide far more information. My experience of the Canadian system is as somebody who tried to have a child through the Canadian system and failed for unknown reasons. Those solicitors will be better placed to give the Deputy more insight than I could.

With regard to the long form of the birth certificate, the Deputy asks a good question. What happens in the United States and Canada is that the couple, as the intended parents and regardless of their gender, have the option to be listed on the birth certificate when the child is born. The surrogate does not need to appear on the birth certificate. As I have mentioned, in the UK, the surrogate must appear on the birth certificate. She is the legal mother at the point of birth and, therefore, must be listed on the birth certificate. We encourage our members to discuss every aspect of a surrogacy journey with their surrogate prior to commencement. If it is required by local law that an agreement be made, that agreement should be made. If that is not required, as is the case in the UK, we still encourage our members to make some form of agreement and to discuss with the surrogate what will happen when it comes to the issuing of a birth certificate. Regardless of what is available in Canada and the United States, when they go there, most couples will ask the surrogate to be named on the birth certificate simply because, when they come back to Ireland, a birth certificate that lists two men as the parents will not work for Irish institutions such as the Passport Office.

There is also child benefit and everything.

Mr. Gearóid Kenny Moore

We encourage all of our members to discuss the really important issue of how the birth certificate is going to look. Of course, if the option is there to include the details on the long form of the birth certificate, that should be another aspect of the discussion between the intended parents and the surrogate. Clearly, it is better if the surrogate is willing to be a participant in that and to have her name listed on the birth certificate. The current reason for listing a surrogate mother on a birth certificate issued in the United States or Canada is simply that it makes life easier for the parents when coming back to Ireland if it looks like a normal birth certificate.

I thank everyone for their presentations. My first question is for Dr. Bracken. With regard to pre-birth and post-birth agreements, what is included? Is it only parentage? If it is a post-birth agreement, does that ever conflict with any health decisions that need to be made during labour if, for example, something goes wrong or if there is a threat to the woman's life? What is actually included in a pre-birth or post-birth agreement? Does the woman's life still have protection if something awful were to happen? Does the agreement affect that in any way, shape or form?

Obviously, the pathway to parentage is the preferred option but have there ever been other mechanisms in law used to give temporary rights with regard to consent for medical care? The first thing that comes to mind would be care orders, although that would be an overreach. Have any other mechanisms within the law been explored in the interim while the parental orders are being assessed to deal with that two-year wait before giving the other intended parents the right to consent in respect of education, medical care or passports? Those are my two questions for Dr. Bracken. I will then come to Mr. Lennon and Mr. Kenny Moore.

Dr. Lydia Bracken

I thank the Senator for her question. On the different protections under a pre-conception or post-birth model, that is really a question for the Irish Legislature to decide. If it decides to adopt a pre-conception approach, we can decide what the ethical standards within that approach will be. Similarly, we can decide the standards that would apply under a post-birth approach. If you look around the world, you will see that different standards apply under different systems, depending on the choices that have been made. However, under a pre-conception model, the same ethical standards would apply as would apply under a post-birth model. The Health (Assisted Human Reproduction) Bill 2022, as currently drafted, is very clear that the surrogate always retains bodily integrity throughout the pregnancy and makes the choices during the pregnancy. Regardless of whether a pre-conception or post-conception approach is adopted, that would remain. It is up to the Legislature to decide what the ethical safeguards are.

With regard to other measures that might be taken, as I mentioned a moment ago there is a proposal in the Health (Assisted Human Reproduction) Bill that guardianship could be granted to the intending parents at some point after the birth of the child by way of a statutory agreement with the surrogate, although I should say that is within the domestic surrogacy model. As written, it seems that would be possible before a parental order is issued in the case of surrogacy. There would therefore be some decision-making capacity. There is a difficulty in that there would necessarily be a time lag before guardianship could transferred through the statutory declaration with the surrogate, which does not address the vulnerability issue we would be concerned about when the child is born. That is certainly something that is proposed within the Bill.

In Mr. Kenny Moore's statement, he said that, under our framework, if the legal parent dies, people can be left in limbo. I do not know if there has been an instance of this in Ireland yet or if we are speaking hypothetically, but what would that situation mean for a child?

Mr. Gearóid Kenny Moore

I thank Senator Ruane for her question. Let me explain how I understand that situation would work legally from my perspective as a non-legal person. When the child returns to the State, whether the parents are a same-sex couple or an opposite-sex couple, the child does not really have any legal parent here in the State because the State recognises the surrogate mother as the automatic legal parent at the birth of the child. The biological dad is not automatically recognised by the State at the point of birth. He must therefore make an application for a declaration of parentage to establish his rights as a legal parent. Assuming that application is successful and he becomes a parent, as we discussed last week, the other parent, whether a female or a male, is nobody in the child's life for the first two years. He or she must apply for guardianship.

To touch on the Senator's question as to what happens if something were to happen to the legal father, who is now resident in the State, and if he were to die, the situation would be that the child would then be in the State being cared for by a guardian but the child would still have a legal parent, that is, the surrogate mother, who is living somewhere else. We do not yet know how the State would react in that situation. The rights of the legal parent, the surrogate mother, could potentially trump the rights of the guardian. Has there been a case of this nature? There was a case before the courts a number of months ago in which a legal father who had a child with his partner through surrogacy made an application because he had a terminal illness. The guardianship application could not proceed because the child had not yet reached the age of two. The case centred around establishing the right of the intended mother to apply for guardianship early and discussing what would happen to the child. I do not know whether a ruling has been delivered in that case. If the legal parent dies, the family is in a really precarious position because the child is now being cared for by a guardian but there is somebody outside the State who has higher authority, that is, the legal mother.

Is there potential for the State's child and family agency to step in and create another level of complexity in that situation with regard to care orders and so on?

Mr. Gearóid Kenny Moore

I would suggest so, though I do not know of a case that has happened yet. As I mentioned in my statement, imagine being in the situation where your family has just been destroyed because of the death of a parent and you have to worry about this.

Mr. Gearóid Kenny Moore

From a purely legal standpoint and my layman's understanding of that, you have a guardian whose rights are inferior to those of a legal parent and there is a second legal parent the State could look to.

I thank the Chairman.

We move on to Senator Clifford-Lee. I can see from the blinds behind her she is on campus but I ask her to confirm it for us.

I am on the Leinster House campus. I welcome our guests. It was wonderful to hear from all of them and their opening statements were good and insightful. Like my colleagues I wish Shane and Carlos the very best over the coming weeks and months as they begin their journey. As everyone will attest it is a nerve-wracking road to parenthood so I wish them the best of luck over the coming months.

Beginning with Dr. Bracken, I wish to go back to the ethical framework she spoke about and that Gearóid and Shane also addressed. Dr. Bracken was talking about an oversight body that will ensure the appropriate standards are maintained and that in the other country the legal, medical and psychological standards are maintained. How can we as a State ensure another country is upholding those?

Dr. Lydia Bracken

We cannot control the laws of another country and we should not attempt to say we can. What we can do is control the recognition or the establishment of legal parentage at home. In doing so we can base our recognition of it on an equivalence of ethical standards. That encourages any intending parents who are setting out on their surrogacy journey to first check to ensure everything they are doing will adhere to that ethical framework. The AHR authority will have a role in that as well by disseminating information about what an ethical surrogacy looks like so anyone who is even contemplating taking on the surrogacy journey would know in advance what ethical standards need to be adhered to. There would also need to be legal advice put in place before any surrogacy is entered into so the intending parents can know what needs to be adhered to in order for the recognition to be granted once the child comes home again.

On the ethical standards, I do not think we can require that the ethical standards here be identical to those in place in another country but we can ensure an equivalence of ethical standards and in doing so, as I mentioned in my opening statement, we need to rely on a human rights framework for that, namely, something that prioritises the human rights of all participants in the surrogacy. For the surrogate, we need to ensure there is free and informed consent, that there are balanced power dynamics between a surrogate and the intending parents and that there are protections for the right to bodily integrity. We need to ensure protection for the rights of the child and then also for the intending parents. If a gamete donor has been used there must be protection for his or her rights as well. By having, as I proposed, a post-birth judicial process that allows for those ethical standards to be checked and for the best interests of the child to be determined, then we can ensure any surrogacy undertaken by an Irish citizen will meet agreed ethical standards as we have set them in Ireland.

Is Dr. Bracken proposing a certification model or just an advisory model?

Dr. Lydia Bracken

Will the Senator explain what she means?-

Is she proposing the Irish regulatory authority certifies particular countries and says these are the countries that are adhering to best practice and that we advise you to go to? Is the regulator certifying these standards are definitely being met there or is it that from what we can gather, these are the best countries to go to?

Dr. Lydia Bracken

I do not think we can certify what is happening in another country because we do not have oversight of what is happening in it. Instead, it would really be advice for intending parents. It would necessarily need to be very reactive and something that can change as standards change. We would need to be constantly monitoring the standards in place in other countries in order to give the relevant advice. Ultimately, the check would take place on a post-birth basis through the courts. I believe that to be the most appropriate way forward but certainly the regulatory authority has a role in disseminating information about where ethical standards might be better met and what the intending parents need to look out for when they are entering into their surrogacy agreement.

Thus it is more of an advisory and information service for people based in Ireland who are looking at international surrogacy options.

Dr. Lydia Bracken

That is what I propose at least, yes.

Okay. I just wanted to see exactly what Dr. Bracken was proposing because there was reference made to a kind of "green list" and a fast-track system for people who went to certain countries. The point of view I am coming from is we have many people in a limbo at the moment. I do not want us to inadvertently create another limbo for people such that there is one list of countries that allow you to be fast-tracked here and that is all great but there is another set of people, children and families that went to other countries and they are suddenly in a limbo now. That is not what Dr. Bracken is proposing.

Dr. Lydia Bracken

It is not. I am fully in agreement with the Senator. We should not say all these countries are bad and all these ones are good. Instead, we need to look at each individual arrangement to see if certain ethical safeguards have been put in place. That is what we should base our model of recognition on.

Dr. Bracken is not proposing a kind of green list.

Dr. Lydia Bracken

I personally am not. The law commissions for England and Wales have proposed a green list so perhaps that is where that suggestion has been made. A more individualised approach needs to be taken to ensure each individual surrogacy arrangement meets the best interests of children and certain ethical standards.

Okay, so it is up to any set of parents to come back with their child and say they were in X country and these are my affidavits and these are the qualifications of everybody that dealt with it. Every family can therefore avail of the system Dr. Bracken is proposing as best practice.

Dr. Lydia Bracken

Exactly, because we also need to recognise there are many Irish people or other people who live in other countries and engage in surrogacy in the country they are living in at the time. If they want to come back to Ireland for a holiday or move home permanently they should not be disadvantaged based on where they were living at the time if surrogacy was legal and lawful in that country and they availed of that process. That is why it needs to be done on a case-by-case basis as opposed to having lists. That is my personal view on that.

I thank Dr. Bracken for that extra information. On the declaration of parentage and the post-birth or pre-birth transfer of parentage, as the committee is examining international surrogacy, is this an issue that is outside our scope because we in Ireland do not have the ability to dictate whether another country looks at parentage post-birth or pre-birth? In the situation we were talking about, a woman is just after giving birth and there is a newborn baby there. We cannot really say we see these two guys as the legal parents therefore the hospital in Canada, the UK or wherever has to recognise them, or can we?

Dr. Lydia Bracken

The determination of parentage for the purpose of Irish law would not be recognised in Canada. Thus, the Senator is correct in saying even if we in Ireland decided that upon the birth of the children the intending parents are the legal parents it would completely depend on where the child has actually been born as to whether the parents in that country are recognised as legal parents at the time and if the child needed immediate medical treatment in that country who would be able to consent to it. We cannot control those particular decisions. It probably becomes relevant when issuing the travel documentation for the child to come back home again. Again, there are ways to address that to ensure the child gets home safely and then the determination can be made about the recognition of parentage.

Okay. I thank Dr. Bracken for answering that.

I have a final question.

The Health (Assisted Human Reproduction) Bill 2022, which is dealing with many other assisted human reproduction issues, is a health related Bill. Dr. Bracken spoke at the start of her presentation about how the Children and Family Relationships Act 2015 has created two different tiers of parents - some who are recognised under the Act and some who are not - and then there is a situation with surrogacy parents where there are significant legal gaps. Would the issue of international surrogacy and all the ancillary issues not be best addressed in a justice-based Bill rather than a health-based Bill?

Dr. Lydia Bracken

It is really a matter for the Legislature as to what form the Bill takes. I only want to see the provisions in place, regardless of where they sit. I would not like to see another Bill being proposed at this stage. International surrogacy needs to be dealt with in the existing Health (Assisted Human Reproduction) Bill 2022. There is a danger that if it is pushed into another piece of legislation, it would be merely pushed down the line and would not happen for several years when there are a number of children who have already been born through surrogacy internationally and children will continue to be born through surrogacy internationally, the vindication of whose rights cannot be delayed any further. If we are to address international surrogacy, it needs to be done in the current Health (Assisted Human Reproduction) Bill 2022.

I suppose I am quite sceptical about the timelines on the basis of what happened with the Children and Family Relationships Act 2015. It was enacted in 2015 but not commenced for a further five years because, first, there were typographical errors and they needed amendments by amending legislation, and then more errors were identified so that there was more amending legislation meaning that it was a five-year delay ultimately. We cannot have another five-year delay in terms of addressing international surrogacy or any other aspect of assisted human reproduction.

We also cannot look at international surrogacy in a vacuum. It needs to be consistent with the other provisions in relation to domestic surrogacy and with our current regulation of donor-assisted human reproduction. It needs to be addressed in one comprehensive piece of legislation and it needs to be done as soon as possible but in a way that ensures that all of the relevant aspects are addressed.

I thank Dr. Bracken. If I could ask one other question-----

We are really short on time. I have only a minute or two for the final question.

Could I ask a really quick question?

No. I am sorry. We have gone over.

I have one question which is a follow-up to one of the questions Senator Clifford-Lee had for Dr. Bracken. When Dr. Bracken talked about how we could not adjudicate on entire jurisdictions and it should be it on a case-by-case basis, is there an option or a model whereby we accredit particular entities or clinics because we determine that they follow a particular ethical pathway and that we have some level of oversight of how they operate? Is that an alternative model that would work?

Dr. Lydia Bracken

To be honest, I have never considered that aspect. If I am allowed, I would like to have time to think about that. I am not sure how that would operate practically but if the Chairman allows, I will provide a written response to that point. I do not have an immediate answer that comes to mind and it is something that I would need to give thought to before I give an answer on it.

A written response would be fantastic. I thank Dr. Bracken.

I thank each of our witnesses for coming in today. Each time we have these conversations, it further cements the fact that we cannot keep going with the system that we have. The system that we have is the one that most disadvantages, makes vulnerable and takes away the rights of children, surrogates and intending parents. I thank the witnesses for their contributions today.

Sitting suspended at 11.14 a.m. and resumed at 11.21 a.m.

In our second session today, we will be considering the provision of citizenship rights and travel documents for children born through international surrogacy arrangements, ensuring that existing children born through such arrangements can exercise citizenship rights and have access to travel documents and arrangements for the verification of documents issued in other countries.

On behalf of the committee, I would like to welcome from the Department of Justice, Ms Tracy O’Keeffe and Mr. Andrew Munro; and from the Department of Foreign Affairs, Ms Siobhan Byrne, Mr. Trevor Redmond and Mrs. Úna Fannon, to our meeting.

Before we begin, I am required to repeat the note on privilege and housekeeping matters. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts of Leinster House will be asked to leave the meeting. In this regard, I ask any member partaking via Microsoft Teams to confirm prior to making his or her contribution to the meeting that he or she is on the grounds of the Leinster House campus. I remind everyone that masks should continue to be worn throughout the meeting by all present and should only be removed when speaking.

I call on Ms O'Keeffe to make her opening statement.

Ms Tracy O'Keeffe

I would like to thank the Cathaoirleach and the members of the committee for inviting the Department of Justice to discuss issues relating to citizenship arising from international surrogacy arrangements. I am a principal officer in the civil justice legislation function of the Department of Justice. I am joined by Mr. Andrew Munro, assistant secretary, who has responsibility for civil justice policy and legislation.

Entitlement to Irish citizenship is governed by the Irish Nationality and Citizenship Act 1956. Section 7 of the Act, which makes provision for Irish citizenship by descent, is applicable to children born outside Ireland through international surrogacy arrangements. Section 7(1) provides that a person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen or would if alive have been an Irish citizen. Section 7(3) provides that subsection (1) shall not confer Irish citizenship on a person born outside the island of Ireland whose Irish citizen parent was also born outside the island of Ireland, unless the person’s birth is registered in the foreign births register, kept by the Department of Foreign Affairs under section 27 of the Act. This requirement does not apply where the Irish citizen parent was abroad in the public service at the time of the person’s birth. Where a person’s birth is registered in the foreign births register, the person’s Irish citizenship is effective from the date of registration, not from the date when the person was born.

Section 11 of the 1956 Act provides for citizenship of children adopted by Irish citizens, with effect from the date an adoption order is made or the date on which an intercountry adoption effected outside the State is recognised under the Adoption Act 2010.

In 2012, a guidance document was published on citizenship, parentage, guardianship and travel documents issues in relation to children born outside the State as a result of surrogacy arrangements. The guidance document was agreed by an interdepartmental group on surrogacy, comprising the Departments of Justice, Health, Children, Foreign Affairs, and Social Protection, and the Office of the Attorney General. The guidance document provides information to people who intend to enter surrogacy arrangements outside the State on the practical and legal considerations arising under Irish law where the intending parents intend to bring the child to live with them in the State. The guidance document gives information on how legal parentage is established, how citizenship may be established, the information required for travel documents to issue for the child and the undertakings required to be given by the intending parents before travel documents are issued.

Under Irish law, the genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child under the Status of Children Act 1987. If the declaration of parentage is granted, the father will apply for guardianship under section 6A of the Guardianship of Infants Act 1964. An Irish citizen genetic father will also, in most cases, apply for an order under section 14(3) of the Passports Act 2008, directing that the Minister for Foreign Affairs may issue passports to the child without the consent of the birth mother until the child reaches the age of 18 years.

The Department of Justice is aware that issues regarding entitlement to Irish citizenship have arisen in relation to children born outside the State through surrogacy or donor-assisted human reproduction, where the Irish citizen intending parent is neither the birth mother nor the genetic father of the child.

There are some judicial review applications before the courts at present arising from passport applications made for children born outside the State through surrogacy or donor-assisted human reproduction and which involve issues relating to entitlement to Irish citizenship by descent under section 7 of the Irish Nationality and Citizenship Act 1956. The Supreme Court has recently determined that it will hear a leapfrog appeal on the question of the interpretation of section 7(1) of the 1956 Act in relation to entitlement to citizenship by descent in the context of surrogacy. This issue arose in the High Court case of A, B and C v. Minister for Foreign Affairs and Trade. As these matters are currently before the courts, it would be inappropriate for the Department to comment further on them at this time.

I am happy to answer any questions the committee may have.

Ms Siobhan Byrne

I am the director of the passport service at the Department of Foreign Affairs. I am accompanied by my colleagues, Mrs. Úna Fannon, head of the policy and legal unit of the passport service, and Mr. Trevor Redmond, legal counsellor in the Department. The Department of Foreign Affairs welcomes the opportunity to address the joint committee this morning.

The Department receives a significant and increasing number of requests for passports and consular services from Irish citizens who have entered into international surrogacy arrangements. The Department is often the first State body encountered by Irish intending parents in their surrogacy journey as they seek to return to Ireland with a child following its birth overseas. The role of the Department in these cases concerns the processing of applications for travel documents for children born through international surrogacy arrangements and also providing consular assistance as necessary in the country of birth.

Our embassies and consulates provide consular assistance and are the main points of contact from the Department for Irish intending parents who are applying for an emergency travel certificate, ETC. The passport service in Dublin prioritises the review of the ETC applications and approves the issuance of the ETC, which is then issued by the local embassy or consulate.

The Minister for Foreign Affairs is responsible for the issue of passports and other travel documents to Irish citizens under the Passports Act 2008, as amended. The 2008 Act clearly sets out the criteria for issuance of a passport to a child, including that the child must be an Irish citizen and that the guardians of the child consent to the issue of the passport. In addition, section 15 of the 2008 Act specifically provides for the issuance of ETCs.

An ETC is not a passport but, rather, a temporary travel document for one-time use.

An ETC is valid for such period as the Minister considers appropriate to enable the person to undertake the journey in respect of which it is issued, generally within 72 hours. An ETC includes a photo of the child, their details and the details of their intended travel.

In the absence of a specific legal framework for children born through international surrogacy, a guidance document, which was published by the then Department of Justice and Equality in 2012, provides guidance as to the principles that will be applied by the Irish authorities when considering whether a child is an Irish citizen and who the child's legal parents and guardians are for the purposes of dealing with applications for travel documents. The guidance document was agreed by an interdepartmental group on surrogacy, which was comprised of the then Departments of Justice and Equality, Health, Children and Youth Affairs, Foreign Affairs and Trade and Social Protection, and the Office of the Attorney General. Among other things, the guidance document outlines the information required in order for a travel document to issue for the child.

In applying the guidance document of the Department of Justice and the Passports Act 2008, as amended, an approach to the processing of ETC applications has developed in consultation with the interdepartmental group on surrogacy. The following is the general approach.

In order for an ETC to issue for a child born through international surrogacy, the Minister must be satisfied that there is reasonable cause to believe that the child is or may be an Irish citizen. For a child born outside Ireland through surrogacy, this is typically based on their genetic link to an Irish citizen father. In addition, the ETC application must be made by a parent or guardian of the child and the guardian or guardians of the child must consent to the issuance of the travel document. When a child is born through a surrogacy arrangement, under Irish law the surrogate mother is the legal mother of the child. If she is married then the surrogate mother's husband is presumed, by law, to be the father of the child. Therefore, the husband will also, along with the surrogate mother, be the joint guardian of the child.

The documents required in such ETC applications relate to: the child; the Irish citizen genetic father; the surrogate mother; if the surrogate mother is married, her husband; and DNA evidence from a satisfactory source demonstrating that the Irish citizen intended father is the genetic father of the child. A list of the documentary requirements has been shared with the committee and we are happy to answer any questions on them.

A number of key documents include: the child's birth certificate; a written undertaking from the Irish intended father that states he will notify his local health centre of the child's presence within two working days of their arrival in Ireland, and that he will apply to the Irish courts for a declaration of parentage and a guardianship order for the child; as well as an affidavit sworn by the surrogate mother in her native language consenting to the taking of DNA samples, the issuing of a travel document for the child and to the genetic father being made a guardian. The affidavit should also state her marital status and confirmation that she has received independent legal advice.

With regard to the verification of documents, public documents issued in the country where the birth takes place must have an apostille certificate. Affidavits and official documents that are provided in a language other than English must be accompanied by a notarised translation with an apostille certificate.

An apostille is an official government-issued certificate added to documents verifying the signature or seal or both of a public officer on a public document. This means that the document will be recognised and accepted when presented in another country that has acceded to The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.

An apostille is issued by the designated competent authority of the State from which the document originates. In Ireland, the Department of Foreign Affairs is responsible for issuing apostille certificates on Irish public documents. The requirement for documents and translations to be apostilled in the emergency travel certificate process allows for further verification that the documents are genuine, and means that the passport service can be satisfied that they are authentic. Given the number of documents required, the process of gathering them can be lengthy. The passport service takes very seriously its obligation to uphold the integrity of the process in order to protect all parties, including the child and surrogate mother. The rights of the child are of paramount consideration.

Furthermore, our officials in overseas missions are obliged to comply with local law as well as with Irish law. The Department will not facilitate the unlawful movement of children across national boundaries. In jurisdictions where an international surrogacy case has not been encountered by the Department before, the Department seeks local legal advice to seek to ensure that it acts in compliance with local law. This means that the ETC application process can be complex and time consuming. The Department of Justice guidance document flags that commissioning adults intending to apply for a travel document for a child should plan for the possibility of the child having to remain in the country of birth until it has been established whether a travel document can be issued. While we endeavour to deal with all applications as promptly and efficiently as possible, the Department can give no guarantee, before the birth of a child, that he or she will be regarded as an Irish citizen or that the intended father will be regarded as a parent or guardian of that child and, therefore, that a passport or other travel document can be provided for the child.

When intending parents contact us in advance of a child's birth we direct them to the Department of Justice guidance document, and advise them to ensure that they have both Irish and local legal advice. We also advise them of the documentary requirements for a travel document application, and of the need to remain in the country of birth until it has been established whether a travel document can be issued.

The Department advises the HSE when the written undertakings, as set out in the Department of Justice guidance document, have been given by the intended father. The Department also notifies border control that an ETC has been issued in respect of a child travelling to Ireland. When the Irish court proceedings referenced in the intended father's written undertakings are complete, a court order is, typically, issued which relates to a declaration of parentage, guardianship and custody. The court order will also, typically, dispense with the consent of the surrogate mother and, where applicable, her husband to the issuing of a passport to the child, and to the issuing of all travel documentation until the child reaches majority. At this point, a father can submit a passport application for their child to the Passport Service.

The Department welcomes the work of this committee and hopes that its recommendations will bring greater clarity, and certainty, to the current travel document application process for children born outside the State through surrogacy, as well as to Irish intending parents. In the meantime, we will continue to assist families going through this process. We would welcome any questions members might have.

I thank the witnesses for their contributions and I now invite Senator Mary Seery Kearney to ask questions.

This exchange is an unusual experience for me, and almost triggering for me, listening to the process being explored by officials, having gone through the process myself.

I wish to thank the officials for their extraordinary dedication, integrity and support that has been given throughout all of the years, and exceptionally so in the last number of months. As evidence of that I have text messages from Department officials that were sent as early as 6 a.m. and as late as 1.30 a.m. on one Sunday morning. They have shown extraordinary dedication to Irish citizens and prospective Irish citizens. Mrs. Fannon was at the heart of it all. I do not know how many emails that there have been at this stage but at the heart of all of that has been an extraordinary amount of work done by her and all of the officials. I thank all of them. The interdepartmental surrogacy group has worked extraordinarily hard over the last month in trying to deal with what is an unprecedented situation, particularly in terms of Ukraine.

What the officials have set out for us is quite onerous and detailed. The standard which parents or intended parents - they are parents to me - bringing home their child has to reach in terms of documentary and DNA evidence is very high. All that is set out in a document provided by the Department of Justice as long as ten years ago in 2012. The document was done by the Department officials and in conjunction with the then Minister for Justice and Equality, Alan Shatter. There are other finer details that I feel are important enough to be drawn out today. I refer to the fact that the DNA evidence is not just a matter of doing a quick swab and placing that in an envelope. The test is done by the Ormond Quay Paternity Services, which is a court recognised organisation in Ireland, and its standard of proof is accepted by the Irish courts in all sorts of paternity matters. Also, the DNA evidence must be taken in the presence of an embassy official and a doctor who has been nominated by the embassy. Therefore, a person cannot just run to any old doctor and pull them in. The embassy must approve the doctor. Everything is done in a transparent fashion. Also, the surrogate mother must be present. In recent weeks, we have had discussions about that, given we have people inside and outside of the Ukraine. It is important that the public hears about the fastidious level of detail that is required.

When one arrives home in Ireland, the first thing one does is contact the public health nurse to register the baby. Then one gets one's solicitor to issue proceedings because one has given an undertaking to do that. Then one arrives into court and the Judiciary looks through one's documentation. The fact that an emergency travel certificate was issued almost means, in and of itself, that a standard of proof has been reached. In a sense, the witnesses are like gatekeepers, although I do not want to undermine the role of the Judiciary in this. This has been vetted by people in the country in which the baby was born, departmental officials who are very experienced and then there is judicial oversight, before any of the orders that Ms O'Keeffe referred to so well are made.

Part of me just wants the witnesses to confirm what I have said. By the time one has that emergency travel certificate in one's hand when coming home, a lot of work has gone into proving the bona fides. One of the things that has been explained over the past few weeks is that the presence of the surrogate mother with the embassy official is, in itself, ensuring consent. The point in all of that is that the intended mother is a bystander to all of this. There is a delicacy and a sadness in that when one is a bystander to something so precious. I invite the witnesses to comment on or confirm that before I move on.

Mrs. Una Fannon

On behalf of all of my colleagues in the Department, I thank the Senator for her kind words. We have implemented quite a robust process. It is absolutely the case that embassy officials do attend the DNA test where they get to meet the surrogate mother, which is just another safeguard. The surrogate mother is met by an embassy official and that helps us in approving the emergency travel certificate application. I would say, however, that the role of the Department is only to approve the emergency travel certificate at that point. The intending parents have to go through a very robust judicial process on their return.

The Department carries out the first vetting of the affidavits, of the consents and the bona fides of the individuals that are signing these. The Department provides local knowledge of who has signed the affidavit, who has overseen and confirmed it.

Mrs. Una Fannon

Yes and in certain jurisdictions we have built up quite a bank of knowledge locally with our embassy staff who have become very familiar with documents from certain countries. My own team in the passport service are very familiar with documentation from certain countries where international surrogacy is very popular with Irish couples. We have quite a lot of experience in certain jurisdictions and have a very good knowledge of the documents that are presented to us.

The precarious part is that at that stage, by the time the Department is engaging and the emails with all of the documents are going to it, a baby is born. We have embryological standards and we touched on that a little at our last meeting. We know that embryos that were created in Ireland can be sent out to clinics abroad. Those clinics have been confirmed by the likes of the Rotunda Hospital or other medical organisations in Ireland and then a baby is born. If a predetermined genetic link could be established it would provide further assurance. I am not in any way undermining the assurance provided by the documentation but there is a precariousness there in terms of a failed DNA test. Guarantees cannot be given because nothing is known until the DNA result comes back. That email is an extraordinary email to get and it gives one a huge sense of relief. The issue is that a baby is born and if something could happen prior to that which would be of assistance in terms of the integrity and the safeguarding of the baby, that would be good.

Mrs. Una Fannon

The Department of Foreign Affairs is really at the tip of the spear We tend to be the first State body that parents encounter in their journey but the Department does not have a role in surrogacy or international surrogacy policy. The baby has been born by the time we are involved in the process.

Senator Keogan is next.

I thank the witnesses for appearing before the committee today. My first question is for Ms O'Keeffe. The orders of reference for this committee say that we should ensure safeguards against the sale, trafficking and exploitation of children. How does she think this is best achieved? My second question relates to the authenticity of the DNA and the testing of same in this country. What happens if the surrogate mother cannot be present? What happens in that case?

My next question is for the Department of Foreign Affairs. Mr. Muiris O'Connor from the Department of Health told this committee on 7 April that the domestic prohibition on commercial surrogacy is predominantly based on ethical considerations relating to the welfare and commodification of the children involved, as well as the potential risks of coercion and exploitation of financially vulnerable women to act as surrogates. Does the Department of Foreign Affairs share this concern and if so, why?

Ms Tracy O'Keeffe

I will start by responding to the Senator's first question relating to safeguards. Processes that have been put in place by the Department of Foreign Affairs in relation to the emergency travel certificate. Guidance documents were prepared by an interdepartmental group and published in 2012, including guidance on what is required when a declaration of parentage application is made to the courts. The steps, processes and documentation required have been laid out and the purpose of all of that is to ensure the necessary safeguards for surrogate mothers and for children and to minimise, as far as possible, any risk of child trafficking or undesirable practices. That is the purpose of all of these procedures and safeguards. The aim is to ensure as far as possible that the documentation is in order. My colleagues in the Department of Foreign Affairs mentioned the stringent DNA testing that is required at the emergency travel certificate stage. That DNA evidence is also required to be presented to the court when an application for a declaration of parentage is made. Under the current legal framework, there as many safeguards as we can reasonably put in place.

Thank you. I would like a response with regard to cases where the Department cannot get in touch with the surrogate mother to secure consent. Is that something that Ms Byrne could answer?

Ms Siobhan Byrne

The role of the passport service is to facilitate the issuance of a travel document following the necessary Acts. The process we follow, as has been mentioned, is very robust in order to ensure that all parties are safeguarded in the process. We would not deal with policy in relation to the process; we are simply facilitators of the issuance of a travel document. Our primary concern is to make sure that all parties are safeguarded and that is achieved through the robustness of the process that is followed.

If the father cannot contact the surrogate mother or her potential husband, how long does that stay in place? Let us say she cannot for a couple of years, does that mean that the emergency travel certificate cannot be issued?

Ms Siobhan Byrne

That is a very particular scenario that I am not sure has ever been encountered. I do not think we have ever encountered that scenario, but we would look at cases on a case-by-case basis. As it has never been encountered, I cannot answer how that would be dealt with.

Okay, that is fine.

Mrs. Una Fannon

I might add that the Department would not encounter every international surrogacy case because we only deal with cases where the child needs an ETC from the Irish authorities. There are jurisdictions where the child can get a passport locally in the country in which the child is born, and this may arise in such cases. In terms of our process, however, the consent of the surrogate mother, and her husband if necessary, is crucial to the process.

The Senator had a third question.

Yes. Do the witnesses share the concern of Mr. Muiris O'Connor of the Department of Health in what he said to the committee on 7 April? He said, "The domestic prohibition on commercial surrogacy is predominantly based on ... ethical considerations relating to the welfare and commodification of the children involved, as well as the potential risks of coercion and exploitation of financially vulnerable women to act as surrogates." Does the Department share this concern?

Ms Siobhan Byrne

Our concerns are focused on the issuance of the travel document and all the parties concerned. The process we follow means meeting all the parties involved, including that the surrogate mother attend for the DNA, that she seek her own legal advice and various other steps. They are the protections that are put in place for all the parties. That shows the importance of the process we follow.

I thank the witnesses this morning. We heard from the previous witnesses, particularly Mr. Kenny Moore. He spoke about passports in America and Canada, coming back here, the difference and how we learn. That was a major issue for me. The other issue is the timescale. This is all technical and we are learning from this. My biggest fear, and I have learned this through politics and life, as I believe all of us have, is that when one is dealing with three or four different Departments, it is an absolute nightmare. One is going from the Department of Foreign Affairs to the Department of Justice to the Department of Health and to the Department of Children, Equality, Disability, Integration and Youth. While there is no question that everybody is doing their best, it becomes a huge issue. One Department will take a lead on this and another Department will take a lead on that. Then one is in a situation where unless it is led by one particular area, it just does not work. I have found over the years with different issues that it becomes a major barrier. One Department will blame another Department regarding the timescale while another will say the person filled the form wrongly or that it does not go to that Department or it is all online. It does not work.

For us and the Government to succeed on this legislation we must have one Department to lead it, be it the Department of Justice, the Department of Children, Equality, Disability, Integration and Youth or whatever. What do the witnesses see as their biggest hurdles when they are trying to work within the remits of different Departments? Sometimes when one is dealing with Departments, one probably does not know who one is dealing with because people come and go and switch and swap. I always find that to be an issue. I believe we need to have a designated two or three people who can lead this. There must be a specific area where anybody who wants that information is able to get it quite quickly. Dealing with passports and other information is very sensitive. We are dealing with very sensitive information here. We are dealing with people's lives and how they are affected. That is my biggest concern with this.

We must make sure we all work together on this. There has been delay over the years. One thing I have learned from meeting the witnesses over recent weeks is that their stories are heartbreaking. They want the system right. They want to be able to have legislation from which they can work. They do not want to do anything wrong. They just want to have a system that fits and is right, and we are not delivering on that. We are failing badly here. Those are my concerns from today, and perhaps the witnesses can respond to me. Again, I know everybody is doing the best they can within their Departments, but when it happens that one is dealing with so many Departments, it just does not work. There were a few questions there if the representatives of the different Departments wish to take them.

Ms Siobhan Byrne

I am happy to respond first. For us, we are dealing with the international element of the surrogacy and that is our primary focus. While we would welcome legislation that would streamline the process for us, there is always going to be an element for us whereby we have to abide by local law. That adds a different nuance for us. While a streamlined process domestically would certainly be of benefit, it would not be possible for the process also to work for every country to which a family may go. When we get a family going to a country we have not dealt with before, that can take longer because we need to establish what the local law is in that country and tweak the process to fit where necessary. We would absolutely welcome a streamlined process, but there are always going to be challenges for our Department in that regard.

That is something the committee needs to examine. It is very serious, and this legislation is crucial. We all have spoken about a three-month time limit here, but it does not seem possible with all the different Departments and how we can perhaps try to get one source that can lead on it. Then at least we will know and work with that area. I thank Ms Byrne but I have concerns about that.

Mr. Andrew Munro

I appreciate the concern the Deputy raises. Sometimes when one looks at 18 Departments, one wonders how we get anything done-----

Mr. Andrew Munro

-----because things are spread across. Inevitably, in terms of operational issues and depending on what is happening, different areas will get involved. If something is happening abroad that requires consular assistance, it is inevitable there will be some involvement from our colleagues in the Department of Foreign Affairs. I have to say they do a fantastic job in this area.

Mr. Andrew Munro

The nub of the question the Deputy is getting at is reforming the policy in this area. There are elements of the law under different Departments, but the machine we have for resolving that is the Government. It acts collectively under Article 28. In the decision it took earlier this year when it put forward the proposal to establish the committee, it was very clear that all Departments concerned - the Department of Health, the Department of Children, Equality, Disability, Integration and Youth and the Department of Justice - would listen to what the committee said and bring forward whatever necessary reforms were required, and that the Department of Health in its assisted human reproduction Bill would take account of the recommendations of the committee. We have a machine, imperfect and all as it may be, for bringing 18 Departments together to a collective view. That is the constitutional position and that is where we will go. The key thing is if the committee can identify the challenges and good solutions there, the Government will reflect on that and seek to implement the solutions that are identified.

Where do the witnesses see their big challenges? In fairness to all the witnesses, in their remits they are experts in their particular fields. Where would they see for us as legislators, who are trying to get this fairness and legislation through, the biggest challenges within the different Departments or even within their own remit? Timing is a big issue for us.

Mr. Andrew Munro

Timing is always a challenge in any project being brought forward, but getting the fundamentals right is key. I think they are outlined in the paper. The Deputy has heard from the other witnesses about the challenges they meet and the challenges intending parents come up against. We are discussing one element of it here, which is the safeguards that must be put in place. That is identified in the paper. It is really about the fundamentals of ensuring the rights of the children, the surrogate mother and the intending parents are protected. Resolving that is looking for risks and asking how to counteract them. For example, we have DNA tests to ensure the person is the genetic father of the child. It is those safeguards and what one is trying to guard against. Senator Keogan spoke about trafficking. It is the necessary things one needs to guard against there. Unfortunately, one ends up with regulatory steps. However, if we can identify if there are ways of improving that, I am certainly open to that.

One thing I have learned from this committee is that communication and how we speak about issues is very important. As one guest said, words matter. I have learned we have to be mindful as legislators that we have proper wording and communication. Communication is the key. How we communicate as legislators, and how the Departments communicate, matters. In that way, people will believe the system is a good one and will want to ensure it works.

I thank all our guests. Deputy Murnane O'Connor spoke about challenges, and we have been given a significant challenge of trying to navigate our way through a very complex issue. We can do that only by means of cross-party support and cross-departmental collaboration. I thank our guests for all they are doing to achieve that.

The main message I have taken from this meeting is that the Departments will not facilitate the unlawful movement of children across borders and that emergency travel certificates will be issued only where there is reasonable cause to believe a child is or may be an Irish citizen. That is important from a safeguarding perspective, as well as when it comes to affording rights to both the child and his or her family. Our guests outlined the robust processes that are in place to prevent, insofar as possible, child trafficking, and referred to the stringent DNA testing at that emergency travel certificate stage. Have there ever been failures in this regard? Are there any cases we need to examine? I hope there are not, but I would certainly love to hear there are not.

What changes to streamlined processes could be introduced to remove as much stress as possible for families? Are bilateral agreements in place, and if not, could they be, with frequently used countries to minimise that stress for both the surrogate and the expectant parents where possible? Are there ways to speed it up and streamline it while ensuring that all the safeguards our guests eloquently outlined will remain in place to protect the child and all the parties involved?

Ms Siobhan Byrne

From the point of view of issuing a travel certificate to a child, it is fundamental that the child must be an Irish citizen, and DNA is taken to prove that. To do anything outside of that, I would have to refer to my justice colleagues on the citizenship element. Our role is to establish that the child is an Irish citizen and our process is very much underpinned by our own legislation.

Ms Tracy O'Keeffe

As my colleague from the Department of Foreign Affairs said, the process is about ensuring that everything that needs to be done has been done appropriately.

Have there been any cases that should be flagged for when we are navigating our way through this legislation? Is there any precedent for any concerns?

Mr. Andrew Munro

Yes, there are, although it is difficult to talk about individual cases, as the Deputy will appreciate.

Sure. Mr. Munro might outline how any concerns could be taken into account to ensure they will be included as safeguards in the legislation?

Mr. Andrew Munro

It is about the kinds of safeguards we see here. DNA tests, for example, are very important to ensure there is a link. To move away from surrogacy for a moment, in the case of any good service a state tries to provide, there will always be people who try to abuse it. For instance, social welfare is fantastic for supporting people and transferring income, but a small proportion will try to abuse any system. Unfortunately, we have seen cases where the intended parents were exploited abroad by, as I referred to at the previous meeting, bad actors.

Did our legislation capture that?

Mr. Andrew Munro

The safeguards that are in place try to address that issue and to ensure people will not be exploited. DNA tests were very important in one of the cases. It is about ensuring that for whatever we want to enshrine in legislation, it will have those safeguards such that the rights of surrogates will be protected, that they are giving their consent and that there is not any sort of undue economic exploitation. The risks are there to see in regard to the safeguards we have in place.

Do our safeguards robustly deal with those risks?

Mr. Andrew Munro

As we said at the previous meeting, in the case of international adoption, there is a framework that can be relied on and, as the Deputy asked about, there are international agreements to which trusted partners have signed up. We can rely on the governance arrangements in the other countries to be robust, but where that cannot be done or where the governance arrangements are not robust, we would have concerns.

Dr. Trevor Redmond

To expand on that, there have been one or two cases, as Mr. Munro said, and we will not go into the details of them. As a general comment, the safeguards build on the legal framework that exists, and I think the committee has heard evidence in that regard. The guidelines that were developed in 2012 build on the existing legislative framework and there is a limit to what can be done within that, which is what we work within.

As has been said, the requirements of the guidelines are quite stringent, but they reflect what can be done in the context of the existing legislation. Of course, the guidelines are not based in legislation and are not statutory, so we apply them in that context. If there were a difficult case whereby someone did not wish to adhere to the guidelines, that would put our Department in particular in a difficult position. That is why, if this is to be regulated, we would see the benefit in regulation that brought greater clarity to the requirements, whereby people would know that in advance and the safeguards would be clear from the outset.

I am not aware of any bilateral agreement but it would depend on the existing policy. I could certainly foresee possibilities and I think the committee has heard proposals in this regard. If front-loaded, pre-surrogacy arrangements were being entered into and if there were a framework, that would assist our Department in the context of working with new countries, for example. As has been mentioned, that would pose particular difficulties.

That underlines the importance of the work we are doing in this committee. I thank Dr. Redmond.

I thank our guests for their presentations. Like Senator Seery Kearney, I acknowledge the role of the Department of Foreign Affairs, in particular, over recent weeks. It has been very difficult. I acknowledge also Senator Seery Kearney, given that some of us who were navigating this issue for the first time were on the phone just as often to her. She was always available. We are dealing with families in very difficult circumstances and so much care and sensitivity has always been given.

My first question follows on from what Dr. Redmond said regarding there being a set of guidelines, not least in the context of the pre-birth, post-birth or at-birth transfer of parentage. I am focusing quite a bit on that because I think it will form the crux of the wider issue to a certain extent. Would a pre-birth parentage model make circumstances easier? Of course, nobody could have envisaged what was going to happen in Ukraine, but would such a model have made some of those situations easier or more straightforward, or would it not really change anything? Would the Department of Justice's goal remain the same?

When representatives of the Department of Justice last appeared before the Joint Committee on Children, Equality, Disability, Integration and Youth, we asked about potential models people have seen internationally that might be considered good practice. I do not know whether our guests have looked at any other models since the previous occasion, or perhaps they heard some of what was said about the Canadian model in the earlier session.

The Department of Foreign Affairs deals with many countries. Are there other systems or examples that work well?

Dr. Trevor Redmond

As regards the models, I do not think we would look at such models. We have a certain role and outward-facing experience but the policy is not with us, so we do not look at the models in that sense. We would defer to others on that.

As regards the experiences we have had to date, we can say from the perspective of our Department that a prearrangement process that brings legal certainty would be a benefit to us. That is just from the perspective of our Department; it is not to say it should be the policy. It is just one factor the committee may wish to bear in mind.

Would that mean there would still be a need for the emergency travel document or could it be issued faster? Are there practical examples of how it would be easier or better for Dr. Redmond's Department? I understand that he is speaking only on behalf of his Department.

Dr. Trevor Redmond

It is difficult to envisage the abstract but the key difficulty we have is applying guidelines in new circumstances where we need to examine the law in that country and the notice we may have of a birth may be relatively short. It does put pressure on the Department and seek that. The law in those countries might be unclear. If one is dealing with a country where surrogacy is unregulated, one might receive legal advice that has ambiguities. In that context, the Department is occasionally in a difficult position. For example, if there was a regulatory agency in Ireland that was responsible for looking at jurisdictions and providing advice, that may take a burden off the Department of Foreign Affairs in the context of those situations where there is potentially short notice. That may be of benefit to us.

Ms Tracy O'Keeffe

As regards models for recognition of international surrogacy, it is an issue with which countries across the world, and in Europe in particular, have had to deal, especially in recent years. We are not aware of any country that has found a specific model or legislative framework. To the best of my knowledge, most countries deal with it in their existing family law framework. Adoption in particular has been used as a route to parentage in international surrogacy cases, particularly in European jurisdictions.

As regards a pre-birth or post-birth model, the Health (Assisted Human Reproduction) Bill provides for a two-step process in respect of surrogacy taking place in Ireland, consisting of the pre-conception stage and then the post-birth parental order. A pre-birth approval may not be sufficient, but that is getting into questions of policy.

Mrs. Una Fannon

To come back on the issue of the emergency travel certificate, ETC, process from the point of view of parents and our experience of how long it can take and so on, a large volume of our applications came through Ukraine, for example, prior to the war breaking out. We had a resident embassy there, so applications were taking approximately three to six weeks to be processed following the birth of the child. There are several documents that cannot be put together until the child is born. We are also dependent on the authorities in Ukraine, or any other relevant country, their processes and how long they take. It was taking approximately three to six weeks after the baby was born in that jurisdiction. As we mentioned, if it is a new jurisdiction where we have not previously had an ECT application, it can take considerable time to put the process in place and ensure all the documents meet our standards. It is important that parents engage in the process early. We often only hear about the birth after the fact. The parents may be in-country and waiting for the baby but we may not hear about it until after the fact. I know the parents get legal advice locally and here in Ireland, as they ought and as we advise, but they should do a lot of research into what is involved, speak to others who have been through the process, be aware of what is involved and be prepared for the level of paperwork and the time it might take. Some parents are not aware of what is involved once the baby is born. From our point of view, it would help to manage the work on our side if parents were fully aware of the situation.

It is about getting a system there because communication is vital. That is one of the areas we need to consider.

Mrs. Una Fannon

We are happy to share with parents what the process is but, as I stated, we may not know about it until after the baby is born.

The parents may not be aware they ought to contact the Department. That is on both sides.

My questions are for our guests from the Department of Foreign Affairs. Some of them kind of tie in with the questions Deputy Higgins asked in respect of citizenship. I refer to situations where the biological intended father is not an Irish citizen but the other intended parent is. Obviously, that has to go into a process. What happens in a situation such as that if the parents plan to come back to Ireland but the biological parent is not a citizen?

Ms Tracy O'Keeffe

That is probably more a question for the Department of Justice. As I mentioned in my opening statement, we are aware of those kinds of issues. They mainly arise in cases where the family is resident outside Ireland, though there have also been cases involving Irish residents. There is a case ongoing before the courts in respect of the interpretation of the citizenship legislation in the context of those kinds of situations. I cannot say anything more at present because the case is to be heard before the Supreme Court later this year.

It is obviously a matter that is coming up and that we do need to consider in the context of those safeguards anyway.

My other question relates to passports. Am I correct that a surrogate mother, as the legally recognised mother of the child, is the guardian under Irish law but if she is married, her husband is joint guardian? That does not naturally transpose in Irish law, however, in the context of gay dads and the guardianship automatically assigning to the other non-biological intended parent. A non-biological husband of a surrogate has full guardianship but that does not happen in the other direction. Can that be fixed? What am I missing in the logic there? Why does the husband of the surrogate have more guardianship rights than the intended parents do?

Ms Tracy O'Keeffe

The Senator's question relates to Irish law on parentage and guardianship. Under the Status of Children Act, there is a presumption that in the case of an opposite-sex married couple whose marriage is subsisting and who have not separated, the husband is the father of a child born to a wife. That applies to children born or conceived in any manner. This presumption has been in law for a long time. As a married father, the husband is automatically a guardian. In order to displace that presumption, one must have recourse to the application for the declaration of parentage.

When the genetic father makes the application and is granted that declaration of parentage, the presumption then ceases to apply in relation to the husband of the surrogate mother so he is no longer the guardian. The genetic father will be. One of the orders he will get is he will be appointed the guardian of the child.

Why does his husband not automatically get the same rights that the last husband got, in terms of guardianship?

Ms Tracy O'Keeffe

It is because the presumption of parentage would not apply.

So it is a presumption of parentage. Sorry for interrupting; I am trying to figure it out in my head.

Ms Tracy O'Keeffe

It applies where you have-----

Is that in legislation, and not in the Constitution or anything?

Ms Tracy O'Keeffe

It is in legislation.

The presumption is written into legislation in relation to a woman being married and carrying a child that the husband is automatically the father of the child.

Ms Tracy O'Keeffe


Okay. That is interesting.

Mr. Andrew Munro

It goes back prior to any health technologies we had. The Senator can imagine that in the 1930s there was just this assumption. How would one have established that a father was a father in the 1930s? It goes back to that.

It impacts differently now.

Mr. Andrew Munro

Absolutely. We have moved on so much.

I had not considered we needed to look, within this area, at the presumption of guardianship to a non-biological husband of a surrogate.

I have a question on the comment that mostly it is after the fact that the Department comes in. Should there be a register of intention so people are not waiting until after the fact? It is a long procedure for people making these decisions. Rather than a Department begin overwhelmed or coming in after the fact, should there be a register of intention so a process can begin in the interim until the legitimate process happens post birth?

Mrs. Una Fannon

That is something the committee could consider. At the moment, the Department only has the guidelines and our own Passport Act to go by and the process has developed based on those. It would be for the committee to consider if that might help streamline the process.

I will briefly touch on the point Senator Ruane was making. Is there an issue in relation to discrimination if a man in a same-sex relationship does not have the presumption of fatherhood granted when a man in a heterosexual relationship does?

Ms Tracy O'Keeffe

It is an interesting question. Since commencement of the Children and Family Relationships Act, where a donor-conceived child is born and all the procedures of the Act have been complied with, the second parent can be registered as parent immediately. The presumption that has for a long time applied in relation to opposite-sex couples is there for the reasons my colleague has explained. It may be more difficult in a same-sex couple situation where the question of the biological possibility comes into play. In the case of a same-sex male couple, a woman who is not a member of the couple had to give birth to the child. There may be issues in terms of what can logically and legally be presumed.

Mr. Andrew Munro

Removing it would have pragmatic implications.

I thank the witnesses. The discussion we have had has been interesting. I will touch on the issue Senator Ruane raised. I practised for a long number of years as a family solicitor and came across the presumption of parentage. When a woman is married, has formed a new relationship and has a child with a new partner, she needs her husband to rebut the presumption that he is the father. That often happens but I have come across cases where the husband is no longer contactable or, in abusive situations, refuses to do it. It has created a lot of problems for women trying to register the birth of their children or get medical cards and PPS numbers. It is a big issue so we need to deal with it. It would help with the issue of international surrogacy as well.

On the emergency travel certificate, what happens if the intending parent who is an Irish citizen is not the biological parent? Do they default to some other country? If they are living in this country but, let us say, in a gay relationship and the biological father is from outside the EU and has not yet been naturalised as an Irish citizen, does the child automatically get a passport of the country of the biological father?

Ms Siobhan Byrne

That depends on local law in the country in question. It would be difficult to answer that question because it depends on the legislation in the country. If there is no biological link, the child would not be an Irish citizen through the biological link and, therefore, we would not be in a position to issue a travel document to the child. Whether a document issues from the other country is down to the legislation in that country.

I understand that but has there ever been a situation where a couple are living in Ireland and want to bring their child back to Ireland to live but the biological parent is a citizen of, say, Brazil ? Are we depending on Brazil to issue a travel document for that child to come back to live in Ireland?

Ms Siobhan Byrne

If the child is an Irish citizen and the consent of a guardian is not available, then the other parent or guardian can go to the courts and get a court order dispensing with that parent's consent. That would apply in-----

I am asking what happens if the child is not considered an Irish citizen. Let us say an Irish citizen and a Brazilian citizen are married and living in Ireland. The Brazilian man has not yet naturalised as an Irish citizen but the couple have a child and the man is the biological father. The family is established in Ireland and intends to live in Ireland. Are we relying on a third country to issue a travel document? Is that the current situation?

Ms Siobhan Byrne

That is the current situation.

Has that situation arisen, to Ms Byrne's knowledge?

Ms Siobhan Byrne

Yes, there have been cases where that has occurred but I would not be able to talk about individual cases.

I understand that. Is it a common scenario?

Ms Siobhan Byrne

I would not say it is a common scenario at all, but it has occurred.

I am thinking of the current delays in naturalising people who have established lives and relationships here. We have huge backlogs there so I am trying to see if that has occurred already and if Ms Byrne could suggest any workarounds for that?

Ms Siobhan Byrne

Where a parent has acquired citizenship through naturalisation, he or she must have acquired that naturalisation prior to the birth of the child.

What if a naturalisation application has gone in but the child is born before the processing has occurred?

Ms Siobhan Byrne

Naturalisation comes under the Department of Justice. I will defer to my colleagues on that process.

Mr. Andrew Munro

It is the case that in any process there will be waiting times. There is a lot of work going on in the Department to deal with the backlog in the citizenship area. It was affected by Covid. We have modified procedures to try to rely less on the transfer of hard copy papers to try to speed things up. The Senator will appreciate the immigration side of the Department is under considerable pressure at present from the temporary protection measures put in place with 25,000 people coming in from Ukraine. There has also been an increase in international protection applications. The immigration operations side of the Department is under considerable pressure. We are conscious of the need to address all of these backlogs.

I am trying to figure out whether in a practical sense it is creating problems with families stranded overseas not able to travel back to their home. I do not want anybody to refer to any specific instances. Clearly it is an issue that has arisen. My colleagues have referred to the other questions I was going to ask. I thank the witnesses for all the work they are doing.

We think of the number of people in direct provision, the delay in this and their access to the right to family life and to pursue all of this if they want to travel abroad. Let us imagine for a moment a delay in the naturalisation process of one intended non-biological parent. Under the guardianship process of the other intended non-biological parent would the child have automatic citizenship? Would this be the case if the biological father was still going through the naturalisation process but the parentage of the other non-biological parent was processed first? Would the child be afforded citizenship on the basis of the non-biological intended parent being processed afterwards?

Ms Siobhan Byrne

I am not aware of any case whereby a delay in a parent establishing citizenship has affected a surrogacy case. I am not aware of any case where this has occurred. When I said there had been cases previously it was more where the parent was not a citizen and, therefore, the child had no entitlement. There have been cases of this but not where it has been affected through a delay in the parent acquiring citizenship, through naturalisation or any other method.

Ms Tracy O'Keeffe

What is important in the legalities of this is the biological parent being an Irish citizen at the time of the child's birth. If a non-biological intending parent is an Irish citizen then guardianship is not enough to confer citizenship on the child. Legal parentage is what is important.

Something that has come out of all of this is that women who need to pursue surrogacy as single women do not have an option to do so in this situation because there is no way to create citizenship even though she may be the biological mother and there is a donor father. Single intended mothers and same-sex female couples have the same issue. They cannot avail of surrogacy for these reasons. It is important to highlight this.

With regard to the presumption of parentage, Ormond Quay Paternity Services issued a report in 2008. The service does not deal only with surrogacy; it does DNA for all of our court's family law services. The report found that in 35% of its parentage testing in cases going through the Irish courts the person who thought he was the father was not the father. This is natural outside of surrogacy and IVF. Yet people who go through infertility issues in the State, and who have the minefield and journey of infertility issues are robustly tested for good reason and I am not for one minute saying we should undermine this. They go through all of this hassle and proving themselves and they can come back to Ireland and not have a legal relationship with the child. We have this double standard. It is not the fault of anybody here.

I heard what was said about communication. In defence, I have to say that in recent months the witnesses, the people behind them and the Office of the Attorney General have found themselves with unprecedented situations of surrogacies that should have happened in Ukraine, had the Russians not been so awful, and babies being born outside of this. They have had to react at very short notice, although we do try to plan or know the dates but sometimes babies come early and catch everybody by surprise. There has been extraordinary communication and extraordinary work and support. I hear all that has been said and I know-----

To be fair, it is not these Departments.

I can say that with my hand on my heart.

Absolutely and we know everyone is doing a great job, and I have seen it with the witnesses, but the issue is that with this legislation we need a lot more communication with regard to surrogacy and those involved. I hope this will be part of the legislation. Everyone is doing their best and that is not in question. I stand over that when people are dealing with a lot of Departments, a lead Department is needed. This is across everything no matter what area it is in. This is where I was coming from, just to clarify.

I have a question on the safeguards. In the previous session we spoke about how to ensure there is an ethical process in place. The models we looked at would not be viable to assess entire jurisdictions. Perhaps it was to be done more on a case-by-case basis. There is a middle option whereby there is potential for assessing particular clinics to state they follow certain guidelines and that we as a State are comfortably with the ethical processes they have put in place. What are the comments of the witnesses on this? Do they see this as a practical solution? Is it feasible? What do they think about how we in this State can somehow accredit a process in another jurisdiction?

Mr. Andrew Munro

This is the challenge with regulation that we mentioned the last day. We are able to regulate health services here because we have enforcement and inspection. Without mechanisms of enforcement and inspection I do not know how we would be assured of the standards of services abroad or even who would be in a position to do it. Would it be the Medical Council or CORU? It is quite a challenge to regulate standards in other countries. In the European Union it is normally done through equivalence arrangements with somebody at the top and the Commission and the Court of Justice of the European Union. There are also international conventions, such as with adoption. It is quite difficult to see how the State would regulate private entities in another jurisdiction. It would be quite challenging.

With regard to the DNA samples required, there are some entities from which the tests are accepted. There is already some level of accreditation of a medical process in a different jurisdiction. Is this correct?

Mrs. Una Fannon

We use an Irish provider for paternity services and it identifies clinics in the country with which it will work. We have used the provider for quite a long time and it is a trusted provider of ours. It identifies the local clinics to use for the DNA testing.

It is a second-tier accreditation that happens.

Mrs. Una Fannon

Our only interaction in the country is with the intending parents. We do not have interaction with the clinics or any of the other stakeholders on the other side.

Would it be feasible to set up a regulatory authority to oversee this? Could this be a function it could undertake? Would the Department be comfortable with this?

Mrs. Una Fannon

That would be for all of the Departments involved to agree. As Mr. Munro said, it would be quite challenging to do so in third countries where we are not involved in the regulation.

Professor Mary Nugent talked about how, clinic to clinic, one can make a judgment call on the protocols and procedures. Maybe there is a way of that knowledge finding itself into the regulatory authority as a pool of knowledge to say that these are clinics. We could not legally stand over that advice but we could give indications.

I thank the officials for coming in. The next time they come in we must have a whiteboard so that we can go through all the different permutations. My brain is doing somersaults here trying to get through it all. I thank them for coming in and being so helpful and for all the work that they have done over the past while as well.

I thank the members. The next meeting of the joint committee will be held in private on Wednesday, 4 May at 11 a.m.

The joint committee adjourned at 12.40 p.m. until 9.30 a.m. on Thursday, 4 May 2022.