In today's meeting we will consider-----
Prevention of the Exploitation or Coercion of Surrogates and Intending Parents: Discussion
I would like to make a comment before we begin. I saw the Minister for Health, Deputy Stephen Donnelly, give a contribution in the Seanad yesterday. When I saw that contribution I nearly did not believe it and a combination of emotions came forward, including upset, anger, frustration and annoyance. Those are the most parliamentary and suitable words I can use. I was thinking of all the families that have been waiting on legislation to recognise their children who have been born through surrogacy and how they must have felt about the situation if that was how I felt.
His comments were appalling and shocking and we need to know exactly what our role and remit is in this committee. We all came onto this committee wanting to genuinely make a difference and regardless of members' views on surrogacy, everybody on this committee wants to see that the children who have been born already and whom we all know and love in our communities would at least have the retrospection and recognition handled and dealt with. Families have been given hope and I know as a Deputy that any parliamentary question I tabled and had answered always pointed to the fact that this committee would be set up and then I was delighted to be able to be part of the committee. I would like the Minister to come into our committee meeting on 9 June and to clarify exactly what his position and the position of the Department of Health is on this committee. I would like a guarantee and assurance before we draft our report that our recommendations will be taken on board, that this is not a talking shop and a tick-the-box exercise and that what we recommend will be included in the assisted human reproduction, AHR, Bill. That is vital and the Minister also needs to acknowledge the hurt and upset he has caused for many families.
I am sick of people trying to say the creation of this committee is somehow delaying the AHR Bill, which has been at pre-legislative stage since 2017, five years ago. This committee, which is working extremely well and effectively, is not delaying the AHR Bill in any way, shape or form. I would like the Minister to clarify that and he needs to do so in our public session next week. I reiterate that my experience on the committee is that we are all committed to ensuring that legislation is drafted to recognise those families and children. It is long overdue and I nearly could not believe what I witnessed yesterday. I was not physically there but when I saw it I was shocked and appalled. It was unbelievably disingenuous and disrespectful. We are colleagues in this Oireachtas and he has undermined our position. I would like all of that to be clarified. I apologise for delaying the meeting.
I thank the Deputy.
I thank Deputy Funchion and I thank the Chair for allowing us to comment. I was in the Seanad yesterday for statements on women's health and the women's health action plan. A number of Senators referenced our committee, the AHR Bill and the need for that Bill to include international surrogacy and a retrospective provision for children already born via surrogacy. The Minister began his reply by stating that international surrogacy was never intended to be in the AHR Bill and that the Bill would be law by now if it were not for international surrogacy. He said this committee was going well and then proceeded to state that it would bring forward amendments. He then proceeded to state that AHR is urgent and that international surrogacy could be brought in by amending legislation. This caused untold hurt and upset among families with children via surrogacy.
Children who are in urgent need of the protections of a full legal relationship with their parents are not an inconvenience.
Women who have had health difficulties and who have had to avail of surrogacy to grow their families, and did so lawfully in other jurisdictions, are not an inconvenience. Women in need of health supports are not an inconvenience. The same-sex couples who require legislative support to grow their families are not an inconvenience. Yesterday was the beginning of Pride month, so happy Pride, by the way, to all of the people who were devastated and upset by his remarks.
All of these people are citizens of this country and they all have a reasonable expectation that the State will support their legitimate needs. The pausing of the AHR Bill on Committee Stage at the Joint Committee on Health gave rise to the reasonable expectation that the work and the recommendations of this committee would be brought forward for inclusion on Committee Stage as amendments. This committee is not charged with writing the legislation. None of us are legislative drafters. We are charged with making recommendations on the specific terms of reference.
The Minister states that he only agreed to a pause of the AHR Bill of 12 weeks. That would have been an impossible deadline to meet, which makes we wonder about his true commitment to the outcome of this committee. I cannot understand why there is a certain urgency and where that has come from. After all, if it is an urgency driven by the very real need to fund IVF, we have had witnesses before the committee who advised us that the two are not interdependent. There is already tax relief on medical expenses and that could be enhanced, so there are ways of ensuring this funding for IVF. The Minister appears to be operating under the misunderstanding that he cannot argue for a budget provision for IVF funding and deliver that for families unless and until the AHR Bill is passed. Perhaps if he informed himself of the actual workings of this committee and the witnesses to it, who include many completely objective witnesses, such as the Ombudsman for Children, rather than making wild, ill-informed statements, as he did yesterday, he might have seen there is a solution to his ribbon-cutting ambition. He might also have informed himself of the fact there are considerable flaws in the AHR Bill as it stands that need to be addressed. To have an ambition to bring the Bill into law by the summer recess, even without international surrogacy, is considerably naïve.
I am sure this is a solo run by the Minister. I have seen the incredible work by the members of this committee and it is my privilege to serve with them. In particular, I would point to my Fianna Fáil colleagues, Senator Erin McGreehan and Deputy Jennifer Murnane O'Connor, who have been exceptional and who have sat with families and heard their lived experience and hardship, and have been really moved. They have been fantastic advocates. I am confident the Minister’s statement is not in the agreement with their thinking. I am also confident it is not in agreement with the Taoiseach's thinking, given he was the first to launch the assisted human reproduction review and prospective legislation in 2005. I am fairly sure he does not support the Minister's perspective. I am absolutely confident my own party colleagues at Cabinet do not support this kicking the can down the road attitude. I support Deputy Funchion’s call to have the Minister come before the committee. I would support the committee, if it was deemed appropriate, issuing a press statement questioning the statement of the Minister on the record of the Seanad yesterday. Clarification is needed as it would appear he is departing from agreed Government policy without recourse to his Government and Cabinet colleagues, and he is also being disrespectful of and undermining the work of this committee.
I listened to what the Minister said yesterday in the Seanad. I was very disappointed to hear the language he used and that he would appear at this late stage to be moving the goalposts. The committee was never tasked with presenting legislation. That is not our job; it is the job of the Minister and the Government to do that. When we look back to our remit, the joint committee was to consider and make recommendations on measures. That is our role and we cannot go outside that role. I ask the Minister to take a look at the remit of the committee so he fully understands what our role is.
It is also disappointing because, at the very start of this committee, we had concerns about what our role was and how it would be incorporated into the workings of Government. We attempted at every stage to get clarity on that matter. We first wrote to the Minister on 25 March, although we did not receive a response. We also wrote on 14 April, asking that he clarify the role of the committee and how he would consider any report published by the committee in the consideration of the Bill, but it was four or five weeks before we received a response. As we all know, this committee is a 12-week committee so we have a very tight deadline. It is very challenging but we have stepped up to the challenge and we have put in as much time as possible to get this done thoroughly. It is disappointing that, despite limited engagement from the Minister, he would then stand up and misrepresent the functions of this committee in the Seanad.
This committee was never to present legislation for consideration. I am conscious of the work that every member of the committee has done. It is unfortunate that this would now appear to undermine the level of input and the level of effort, not only of the committee members, but also the witnesses who have come in to tell us their often very personal stories. For those people to now feel their input will potentially not be considered is unacceptable.
I agree with the suggestion to invite the Minister in. I see Senator Ruane is now with us and she may want to comment. The proposal is that we invite the Minister in next week, or potentially the week after, to seek clarity on this. We are due to finish and present our report on 7 July and the Dáil will be rising within a week at that point. There is an entire summer recess period where the Minister and his Department could take our recommendations, draft them and turn them into legislation that can be utilised. There is no way what we are doing is delaying the AHR Bill. The fact that is being indicated is incorrect and wrong.
We will leave it at that that because we have witnesses before the committee. Is it agreed that we invite in the Minister? Agreed. Hopefully, we will finally get some clarity on the matter.
I apologise to our witnesses for the delay. In our meeting today, we will consider how to best prevent the exploitation or coercion of surrogates and intending parents, and ensure intending parents have an understanding of the full implications of the surrogacy process. On behalf of the committee, I welcome to the committee room Ms Edwina Oakes, Ms Marian O’Tuama and Ms Victoria Reid from the Irish Fertility Counsellors Association. Joining us online are Ms Sara Cohen and Ms Sharon O'Shea.
Before we begin, I will deal with the issue of privilege and some housekeeping matters. All witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. There are limitations to parliamentary privilege for witnesses attending remotely outside of the Leinster House campus and, as such, they may not benefit from the same level of immunity from legal proceedings as a witness who is physically present. Witnesses participating in this committee session from a jurisdiction outside the State are advised that they should also be mindful of their own domestic law and how it might apply to the evidence that they give.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex in order to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask members participating via Microsoft Teams that prior to making a contribution to the meeting they confirm they are on the grounds of the Leinster House complex.
I invite the witnesses to make their opening statements and we will then go to questions. I first call Ms Cohen.
Ms Sara Cohen
I wish committee members a good morning from Toronto, Canada. My name is Sara Cohen and my practice is Fertility Law Canada. For the past 12 years, I have practised exclusively in the area of fertility law and I am recognised as one of the leading fertility lawyers in Canada. I have provided independent legal advice to more than 2,000 participants of gestational surrogacy in Canada, to both Canadian international intended parents as well as to Canadian surrogates. I am grateful and honoured to be invited to share my experience with the committee.
The committee asked me to discuss how to best prevent the exploitation or coercion of gestational surrogates. During this opening statement, I will focus on my personal experience. However, in my briefing document, I provided several academic articles and other resources to help members.
Perhaps the reason I am most proud of my role in gestational surrogacy in Canada is my belief that the process is ethical and protects the well-being of all parties involved, as well as those of the resulting child. I imagine that we all agree that surrogacy cannot be ethical where surrogates are exploited or coerced to participate. This is antithetical to my experience of surrogacy in Canada. In fact, I find the opposite to be true. Almost without exception, surrogates tend to find the experience rewarding and empowering. They frequently have long relationships with intended parents and the resulting child long after the birth. Many gestational surrogates have such positive experiences that they choose to participate in subsequent journeys.
Surrogacy in Canada is recognised and regulated both federally, in the Assisted Human Reproduction Act, and provincially. Surrogacy in Canada is altruistic and commercialised surrogacy is prohibited by federal law. However, the Canadian concept of altruism allows surrogates to be reimbursed for their reasonable expenses, where such expense is incurred as a result of the surrogacy. Each province handles legal parentage of a child born through surrogacy a little bit differently and, with the exception of the province of Quebec, all are surrogacy-friendly. However, in all provinces, the surrogate must provide her consent not to be a parent of the child not only before transfer of the embryo to her body but again following the child's birth.
Part of the reason I believe surrogacy in Canada is not coercive or exploitative is simply because of the socioeconomic realities of Canadian women, which are dissimilar to those of women in Kenya, Mexico or other such surrogacy destinations, but far more similar to American and British women. Canadian women have agency over their bodies, access to social services and free healthcare. In my experience and as the research bears out, surrogates in Canada tend to be Caucasian, educated, financially secure, have emotional and other support available to them and are English-speaking. Often, I find them to be employed in helping professions, such as nurses, midwives, teachers or early childhood educators. They do not need to do this but they want to do this.
Canadian gestational surrogates are required to undergo psychological counselling, obtain independent legal advice, undergo medical screening and enter into a written legal agreement with the intended parents - all prior to the transfer of an embryo to her body. They retain decision-making rights over their bodies throughout the process. I find that the surrogates are very well informed about surrogacy, including the medical, legal and psychological procedures, risks and expectations, prior to an embryo transfer. Perhaps it is for these reasons that there are no cases in Canada where a surrogate has ever tried to keep the baby.
Surrogacy in Canada is about relationships. In practice, it is the surrogate who chooses the intended parents for whom-----
Ms Cohen has gone on mute.
Ms Sara Cohen
I noticed that and I apologise. I will back up one sentence. It is the surrogate who chooses the intended parents for whom she will carry, and not the other way around. The women are not coerced or exploited and they do this because they want to. They tend to desire and experience meaningful, collaborative and caring relationships with the intended parents throughout the pregnancy and long after the birth.
I understand from my Irish colleagues that it is unlikely that the need for gestational surrogates will be met by domestic surrogacy. Canada continues to provide Irish intended parents with a safe, ethical and legal jurisdiction in which to engage in gestational surrogacy. Working collaboratively, Canadian and Irish lawyers are and ought to be engaged to ensure that the legalities of both jurisdictions are met. I hope that the checks and balances to ensure free and informed consent of the gestational surrogates, the federal and provincial recognition and regulation of surrogacy in Canada, the positive experiences of the gestational surrogates and the socioeconomic realities of Canadian women satisfies the committee that surrogacy in Canada is neither coercive nor exploitative of gestational surrogates, but is in fact empowering and rewarding. I believe that this committee, Irish intended parents, lawmakers and courts can find comfort and confidence in Canadian surrogacy to provide a safe and ethical surrogate system for Irish intended parents engaging in surrogacy abroad.
I call Ms O'Shea to make her opening statement.
Ms Sharon O'Shea
I thank the committee for inviting me to tell our family story. I carried my sister's baby out of an act of love eight years ago. My sister Marie was very sick as a child, spent much time in hospital and battled illness. In her teen years, she was told by doctors and the medical profession that her womb never develop properly to carry a child. Therefore, automatically, as a family, we spoke about this around our table and I told Marie that I would carry a baby for her by IVF if I was able to have children and if the timing was right. From that day, in my head that was the way it was going to be in our house. I was never forced, asked or pushed into doing anything. It was an automatic gesture of love for my sister, who fought hard to survive from an illness that she had from birth.
The years went by and luckily I married and went on to have two beautiful children of my own. Marie and John, in turn, married, and the time came when we spoke about them having a family, with me being her surrogate. Hopefully, it would work. Marie and John had a lot of work to do and plans to sort. There were many clinics, a lot of travelling, medication and injections for both of us. Our journey had started. It was definitely not an easy route for them. Marie and John created their own embryos which were transferred to me. To our delight, a positive pregnancy test meant that Marie and John were expecting their little baby. We had a positive test.
One day while I was carrying Marie's baby, a lady came to me and asked how I would ever give away my child. She did not understand, so I explained to her as I did to my own children at that time. When I asked them, in a way, if we would we help Marie and John have a family of their own, of course being kids, they said yes. We kept it simple for them. I told them that I was giving Marie and John somewhere safe for their baby to grow, because Marie could not do this herself. They understood this.
I can never imagine how hard it was for Marie to watch me carry her little baby. People said to me while I was carrying Lucy that I must have a very special bond with this baby, to which I would reply that it was Marie with whom I had the special bond. I was just babysitting for nine months, like any auntie would do. Thank God, Marie and John had a beautiful little girl eight years ago. All was well. We had Lucy by caesarian section. She was taken away with Marie and John and I met her back on the ward in her mammy's arms for the first time as a proud aunt.
We were discharged from the hospital and when the day came, we had to register Lucy's birth. I will never forget that day. I felt like a criminal, signing my name on a birth certificate with Marie's husband John. No questions were asked of him but this is what we had to do. We hugged and we cried, and it broke my heart. It was bittersweet. Marie now had her family but was not seen as mammy in the eyes of the law. Now, due to the lack of law, my own children have a sister on a birth certificate, which my family and I have no genetic link too. She is Marie's and John's daughter.
This time I was diagnosed with cancer. It gave me much time to think, and one of the things I thought about was Marie's story.
It was a special story. She was a fighter, but now I feel that I have to try to fight to ensure that Marie gets the legal rights that she and Lucy deserve. This is why I am here today. I thank the committee members for taking the time to hear our story, even though this was a brief description. I could speak all day about our family's story because there were so many ups and downs and ins and outs. We are here today, though, as one of the many families looking for the legal rights that Marie and Lucy deserve, and for me, as the surrogate, to not have any legal rights to Lucy. It is Marie who deserves these rights and not me.
I thank Ms O'Shea for her contribution and for telling us her personal story. I thank her very much for coming in today. I call Ms Reid.
Ms Victoria Reid
I thank the committee for inviting me to speak. I was a surrogate for my sister, Emma, eight years ago. I will tell the committee members a little bit about Emma’s journey. I do not have any childhood memories of Emma in which she was without a doll in her hand or was not wheeling a pram. From the time she could walk and talk, Emma would say she wanted to be a mammy and that one day she would have a little girl called Sophie and a little boy called Sean. This was her dream. Fast forward some years later when Emma was 17 years old and she was given some devastating news. It was discovered that she had a medical condition that meant she would be unable to carry her own children. Although her ovaries were working fine and she would be able to have her own biological children, she would need someone who could give her babies a safe place to grow.
My mother told me that Emma’s heart broke into a million pieces that day. My immediate response was that I would be willing and waiting to help Emma in her journey to motherhood whenever she felt the time was right. For me, it was more than just about giving her baby a safe place to grow; it was also about helping to mend her broken heart. In 2013, we began that process using Emma's embryos and her husband's sperm. A year later, a little baby girl called Sophie was born into mammy’s arms. Right in front of me, all the pieces of my sister’s broken heart were put back together again. My sister was finally a mammy. What an honour it was for me to be a part of something so special.
With the help of our sisters, Laura and Jessica, and our best friend, Leigh, Emma and her husband, Michael, spent the next seven years trying to give Sophie a sibling. After five attempts, three miscarriages and the devastating loss of their daughter, Katie, they almost gave up. I do not know how or where Emma found the strength, but somehow she found the fight in her to try what would be her last attempt at giving Sophie an earth brother or sister. With the help of our sister, Laura, this time last year, I am delighted to say that a little boy called Sean finally made his appearance into the world, and he brought a friend with him, his twin brother Harry. Both babies were born into their mammy's arms, just like their sisters were.
It is difficult to fit into the time available today a full description of just how hard the past eight years have been for my sister, but I hope I have given the committee members some kind of insight into the hardship she has had to endure. It has been mentally, physically and emotionally exhausting. It has been a fight from the very beginning. The day Emma held her little boys in her arms was the day her fight should have been over. Sadly, though, due to the laws here, her fight continues because her children do not have the same rights as mine or yours. Emma does not have the same rights as a mother as I do. In fact, I have more legal rights to her daughter than she does herself.
My experience of acting as a surrogate was an amazing one, but - like Ms O'Shea - one of the most difficult things I have ever had to do was walk into a registry office with my sister’s husband and register her baby as my own. This was the only option we had because of these outdated laws. These laws need to catch up with science. These laws are unfair to the surrogate and to the mother. I do not think there is a person in this room today who could look my sister in the eye and tell her she is not a mammy, but these laws tell her just that. These laws deprive Emma of a title she so rightly deserves. She has four beautiful biological children. Emma is Sophie's, Katie's, Sean's and Harry's mammy.
I thank Ms Reid. We move on now to Ms Oakes.
Ms Edwina Oakes
I am the chairperson of the Irish Fertility Counsellors Association, IFCA. I thank the committee for the invitation to share our perspectives with the members. The IFCA was founded in 2008 by a group of specialist fertility counsellors in response to emerging issues clients were experiencing while preparing for investigations and treatment. Since then, we have grown our membership to 25 professionally qualified counsellors, psychotherapists and psychologists with specialist training in fertility. We believe the work we do holds significant value for clients thinking about embarking on their fertility journey. We believe that all patients making reproductive choices deserve the opportunity to speak to a qualified and experienced mental health professional who can guide them through the implications of their decisions and support them as they make those decisions. Our role as specialist fertility counsellors is to listen and support clients in a non-judgmental way.
There can be complex considerations around assisted reproduction, which can be very challenging for the clients. We believe that the provision of a structured counselling service in surrogacy cases serves to guard against the exploitation of the intending parents and is also in the best interests of the resulting child. As specialist fertility counsellors, we are trained to create a confidential and safe space for clients to talk through their feelings, concerns, losses and hopes and to explore the future implications for them and for their families. The IFCA wishes to highlight the importance of implications counselling for intending parents and surrogates. Implications counselling for intending parents is in line with best international practice. It allows the intending parties an opportunity to carefully consider all the possible implications of their decisions and how those may impact them in future. Implications counselling includes social, legal and ethical considerations to be contemplated when creating a family and it also allows the opportunity for intending individuals to voice any concerns or fears they may have. Specialist fertility implications counselling would assist in preventing the exploitation and coercion of intending parents and ensure an understanding of the full implications of the surrogacy process.
As specialist fertility counsellors are in the room with the intended parties, we are uniquely positioned to facilitate addressing any areas of concern our clients may have relating to creating a human being. Some clinical research has been conducted by an IFCA member, Dr. Ciara Byrne, clinical psychologist, in conjunction with the National Infertility Support and Information Group, NISIG. Dr. Byrne conducted research on the socio-emotional experience of these parents. Her research findings indicated that there is a strong clinical need for psychological support among Irish parents of children born through surrogacy. The key findings that emerged are that: parents had concerns that their child would reject them; parents had significant concerns regarding disapproval from the community; and parents also felt they lacked the practical and emotional tools for communicating with their child about their origin story. Equipping parents with the tools for healthy family dialogue around their origin story is key to promoting positive mental health amongst children.
Professor Golombok and her colleagues at the University of Cambridge have spent four decades examining the impact on the child and on the family of psychological adjustment to alternative family forms, including those families created through donor conception and surrogacy. They have found that those families who disclosed donor and surrogate origins to children in the preschool years generally showed more positive emotional outcomes when the children reached middle childhood than children from non-disclosing families. In contrast, the evidence for surrogate or donor offspring told of their origins as adolescents or adults indicates negative emotional reactions such as shock, betrayal and confusion. When parents choose not to disclose origins through surrogacy or donor conception to their children, it is most often due to their own feelings of fear and the perceived lack of tools on how to communicate with their children.
The IFCA is firmly committed to supporting all parties in surrogacy treatments to ensure that the process is normalised, humane and fair to all.
High-quality specialist fertility counselling is one way to ensure that the risks of exploitation or coercion to intending parents is minimised. We are happy to engage further with the committee in any way it sees fit and to answer any questions committee members may have, either today or at a future date.
I offer my sincere thanks to the committee for the opportunity to address it on this important issue.
Thank you, Ms Oakes. Now we go to the members for their questions. There are seven minutes each for questions and responses. We have a speaking rota so we will go through that and then, if there is time left over, we can go for a second round. First on the rota is Senator Ruane.
I thank the witnesses for their contributions. I have only a couple of questions. I do not have any questions for Ms Reid or Ms O'Shea. Their experiences and contributions speak for themselves and do not need adding to or teasing out. They were very eloquently put and powerful. I very much agree with Ms Reid that it must be an honour to be able to do this for somebody else. I think the only questions I have are for Ms Oakes or Ms Ó Tuama. They relate to counselling. Is counselling mandatory or optional for surrogates?
Ms Marian Ó Tuama
It is optional but recommended. Generally, the fertility clinics say, "This is part of our process, and this is what we ask you to do." There is no legal mandate for it but it is-----
Is the take-up of counselling usually quite high, then? Are people usually okay with having those conversations and engaging in counselling?
Ms Marian Ó Tuama
Yes, generally. I think people generally come into this process thinking that if anybody can explain something to them or give them more information, the most they lose is an hour out of their lives and they might gain some new perspective. There is a lack of conversation about assisted human reproduction in general so, unlike with other issues people face in life, people do not have the opportunity to ask friends or family how they managed this or what they did. It can be useful to be able to talk to somebody in order to meet other people in this situation and to learn how they managed it. It is a matter of reassuring people that they are not alone in this.
What about the type of therapy that is provided in this area? I am asking Ms Ó Tuama only because people point to why people make decisions. I know why I make the decisions I make but, of course, it is always helpful to be able to bounce them off somebody in a room and so on. What type of therapeutic engagement is required in respect of somebody who is going to be a surrogate? Is it mostly information or is there an exploration of the person's intention and reasons, understanding why the core desire to be able to help another person is in that person? Does that happen in the area of therapy as well?
Ms Marian Ó Tuama
Absolutely. When I explain the implications of counselling to someone, I say that part of it is me giving information to that person as to what the research states, what resources there are and what organisations the person can join and that the other part is working through how this is sitting with the person and they imagine it sitting with them in ten years. We might ask surrogates how they will talk to their kids about this and how they will draw boundaries within their own families. Everyone's family is different, and it is a matter of making sure that everybody has the same understanding of how this will be for the rest of their lives and how that will be knitted into their family stories.
Is there an opportunity then for family therapy to identify clearly that everybody is hearing the same thing and planning the same thing and that that same information is understood equally by all parties?
Ms Marian Ó Tuama
Absolutely. It is really important that everybody hears the same thing and has the same idea as to when the children will be told, what it will be like with the partners and what will be said to Auntie Mary. The more people can talk to one another and talk through this and be on shared ground at the start, the smoother the process will be for them.
Brilliant. I have one more question. Let us say there is a woman who wants to be a surrogate and who, at some point in her life, may have came into contact with any sort of service, maybe a mental health service, or may have a particular diagnosis or an invisible disability. Is there any way there is any bias against or exclusion of people on that basis, not necessarily in respect of a current assessment but in a lifetime span? Are people who want to engage in a surrogacy process judged or discriminated against somewhat, maybe, due to a particular time in their lives?
Ms Marian Ó Tuama
That is not something I have come across. That is as much as I can say. Generally, we take people as they are. Surrogates and parents are not designed to be perfect, so it is more about whether the parties can make it work for them. I am really struck by the idea the two surrogates who spoke raised of the great love and the great desire that is there to help the other person being probably the overriding thing.
Brilliant. I thank the witnesses.
I too thank all the witnesses, in particular Ms O'Shea and Ms Reid. I think there was not a dry eye in the room. It was lovely to hear their stories.
My first question, though, is to Ms Cohen. I was interested in her opening statement. Does she feel that surrogates living in poor or socio-economically disadvantaged countries are unable to make informed decisions? What does she feel works best in Canadian surrogacy legislation and what needs to be improved?
Ms Sara Cohen
That is something we all need to explore. I must express that my experience of surrogacy, of which I have quite a bit, is limited to the Canadian model. It would therefore be unfair of me to talk about how surrogacy works in other jurisdictions, only to say I think, and the research is very clear, that the socio-economic realities in certain jurisdictions are different and that it is important to keep that in mind when choosing how to oversee international surrogacy as to not only what we can accept but also where can we rely on proper legal frameworks and proper steps that have been taken to ensure that the surrogate provides free and informed consent. I do not have experience of surrogacy in places such as Kenya so it would be unfair of me to comment on that. I can tell the Senator only that it is very successful in Canada. The proof is in the pudding in that all the academic research, in my personal experience with surrogacy, shows that it is incredibly rewarding and truly something the parties are proud of.
As to where I think Canada could improve, there are a few areas. We have agencies in Canada in respect of which, similar to most jurisdictions in the United States, I would love to see some regulation, with certain professional backgrounds required. Overall, we see counsellors, social workers, etc., involved in the agencies, and in Canada we absolutely require psychological counselling prior to engaging in a surrogacy. It would be helpful, however, to have some regulations in respect of the agencies so we could ensure they are of a certain standard, even if we are meeting those standards anyway. It would be the right thing to do.
I thank Ms Cohen.
My next question is for IFCA. How would it suggest the Government and potential AHR regulators set up counselling for intending families, especially those who are on the road to surrogacy? This is a question I have been asked several times. What sort of budget would be required for such a service?
Ms Marian Ó Tuama
As to what type of service we would like to see?
Ms Marian Ó Tuama
To start, it would be useful if a number of sessions on implications were provided. There could be meetings with the intending parents, with the surrogates separately and then with all parties, that is, the intending parents, the surrogate and the surrogate's partner, if the surrogate has a partner, in order that all those stakeholders are in the room together and that there is an opportunity with each party to tease through their particular role. Then, at the end, there could be a round-table discussion, as referred to earlier, in order that everybody is on the same page before the process moves forward. That is what I would recommend.
As for the budget for it, I am afraid I do not have an answer to that to hand. At the moment specialist fertility counsellors work either in fertility clinics or in private practice, where we are engaged directly. I do not work and have not worked for a State agency in that regard so I do not have any answer to that question, I am afraid.
I thank Ms Ó Tuama. My last question is for the surrogates. What would they like to see changed about the birth registration process? Would they be happy for the birth certificate they are mentioned on to be altered? Would they prefer pre-birth or post-birth transfer of parental rights to sister or husband?
Ms Victoria Reid
I would prefer pre-birth, definitely. It was Emma and her husband's embryo so that transfer of parentage should have been able to be done right from the beginning. I would be delighted to see Sophie's birth certificate being changed to reflect the truth, which is that Emma is her mammy. I do not think if is fair for Sophie to have her aunt listed on her birth certificate as her mother. Sophie has to hand her birth certificate in for things like joining a football team and for school. I am part of Sophie's story and proud to be. She knows all about how she got here and is proud of that too. It is her story to tell and every time she hands over her birth certificate or needs it for something, she should not have to share her story unless she wants to. I am delighted to be part of the story, but I should not be on the birth certificate.
Ms Sharon O'Shea
Including as recently as last night, we speak about this from time to time. I have no genetic link to Lucy. She is my niece. It broke my heart to put my name on that piece of paper. I do not think my name should be there at all. If it could be amended, oh my God, that would be unreal. It would be the icing on the cake to have Marie's name on that piece of paper. We are a small community in Donegal and were very open about the story from day one. Everyone knew what was happening, from our family to our neighbours to everyone, and has backed us 100%. It is eight years on and the legal side is still slow. We need to get it changed. Down the line, if Lucy had to get a mortgage for a house, she would need her birth certificate. It does not need to be so complicated. Paperwork could be put in place to tell Lucy's story and that I was her surrogate, but on the birth certificate it should be Marie and John McPhelimy as mammy and daddy, that is, parents.
Lovely. Thank you so much.
What powerful contributions all the witnesses have made. I will start with the less emotional one and look to the counsellors. They made valid points. It is important for couples on this journey and is the first thing they have to do. We need to distinguish that we have same-sex couples who are not at the end of a big IVF journey or do not, perhaps, include a woman who has encountered health issues. We need to acknowledge that they have rights and need to also have counselling and supports. For opposite-sex couples, there is an element of mourning the losses, the hopes and the anticipated things of the future, like no one will ever say your child looks like you, perhaps, because they will assume, or people will make assumptions around the birth. That is important.
Would we have objectivity questions if the same counsellor was counselling and supporting both the surrogate mother and the intended parents? Although there will be a need for coming together, I wonder about that. The counselling psychologist in me is wondering if there are ethical issues of independence, in the same way we have about legal elements.
I address Ms O'Shea and Ms Reid. I have asked Emma's permission to do this and she is in the room with us. You have my heart. Hearing this is very hard but it also brings incredible joy to hear the women who are surrogates are coming from a place of great love and care. I send a big hug over to Emma. Ms O'Shea and Ms Reid articulate incredibly well that experience. It appears that Ms O'Shea visited the baby.
Ms Sharon O'Shea
Yes.
There is a safeguard built into that of boundaries and there is something beautiful and honouring about that. Perhaps Ms O'Shea would like to comment on that.
To Ms Cohen, I note that Canadians travel for surrogacy. We have come across Canadians travelling for surrogacy. We have heard witnesses before the committee speak about how thorough and exemplary the Canadian model is, but Canadians also travel. Will she suggest why that might be?
Ms Sara Cohen
I will answer to the best of my knowledge. The statistics in Canada are not wonderful and I pointed out some of those numbers in my brief. I do not think a large percentage of Canadians travel for surrogacy because domestically they have a good system. We have free healthcare and excellent medical systems for many reasons we have talked about.
When I speak with people travelling for surrogacy, they come to me with potentially three different destinations in mind. One is the United States. That is for clients who are so wealthy their last name is famous in Canada. Surrogacy in the United States is expensive and some people prefer to pay a surrogate and you cannot do that in Canada. You are only able to reimburse them for expenses. The other places I see people travel to included, formerly, Ukraine. It was just about price differences. People thought, maybe correctly, that it would be less expensive to engage in surrogacy in places like Ukraine. Finally, as the Senator is probably aware, surrogacy in India used to be booming. I was not involved with that but it is open for people who are Indian citizens, so once in a while I see that, but I do not see other Canadians going elsewhere at all.
I am familiar with Canadians travelling to Ukraine, for instance. I thank Ms Cohen.
Ms Sharon O'Shea
Regarding safeguarding myself or Marie on my journey, I never had to do that because she is my sister. It was an easy journey in that way. Every clinic I went to, Marie and I were together. We were close that way. When it came to carrying Marie's baby, it was always Marie's baby. Marie had a clinic, Marie and an appointment, Marie had a scan. It was never Sharon's scan or clinic because it was not my baby.
When the time came for delivery, I was lucky that the team at the hospital was amazing. My husband was supporting me and was outside the room. I went in, in my head, to have a procedure done because I was having a C-section. We were screened off from each other. I remember Lucy being born. I remember that cry and a tear came down my eye. With a sigh of relief, the baby was born. Marie, John and Lucy left the room. The nurses and doctors were amazing to me and I came back to the ward and met my niece for the first time, as I should. Had it been a normal situation, I would have met my niece on the ward just like that and that is how it was. I was not really safeguarding myself.
Carrying a child who is not your own is very different. Me carrying my own baby is different from me carrying Marie's Lucy for her. It is special, but the bond for me to Marie was very special and I very much felt as though I was babysitting and caring for little Lucy. Other people might look at things differently, but for me it was very straightforward. I felt when she was born that the job I had promised to do many moons previously, when Marie was a teenager, was now done.
Unfortunately, the legal side is now holding up things somewhat. Please God, that will change in time. I long for the day when Marie can be noted as "Mammy", as she so deserves, not Sharon the auntie. Imagine if there was another day when we had to go to the courts. I had to sign over guardianship to Lucy's mammy, yet I am the aunt. It would be amazing if the legal side of things was rectified and, please God, before Lucy turns 18, things will be made right. Even if Marie out here needed to be cared for, Lucy is her daughter and she needs to be able to do that but she cannot at the moment because she has no legal rights to her mammy either. I cannot say any of this was about me; it is about Marie and Lucy. I am good and strong and healthy and well, and we were very open as a family. That is the way to be with this. To anybody who undertakes surrogacy, I have to say, it is a proud day when you can help your sister.
Ms Marian Ó Tuama
The point the Senator made earlier was a very valid one. Those boundaries are very important. Within IFCA, our membership knows one another and, therefore, it would not be uncommon for somebody to make contact to say he or she was dealing with someone who should have separate counselling in order that that objectivity would be built into it. We would do that, but it is ad hoc and is not required because there is a lack of a structure around it. It is certainly something that happens in an area where there might be conflicting interests or ways of looking at things. It would be handed over if it was felt it was not appropriate for one person to deal with all the parties.
I am just thinking of the resilience of the guidelines in regard to complete objectivity and protection of all the parties.
Ms Victoria Reid
My experience and that of Ms O’Shea are so similar. It was exactly the same for us. Sophie was born into her mammy's arms and off they went. The second person to meet Sophie was her daddy and I was lucky enough to be the third person. Again, it was on the ward, so they had those two hours as a family before they were stuck with me for five days. Even down to the pregnancy test, of course, I had to take a test but I was not in the room for the results. That was Emma and Michael. They had that moment. Insofar as we could give them their own experience, we did. They came into the room to tell me the results and it was amazing to be part of that and of my little sister's journey. We tried to give them as much of their own experience as we could. In that regard, I met my niece in the ward in the same way my other sisters did.
I thank all our guests who have contributed to the meeting. We have heard some very personal stories and I acknowledge how difficult it must be for people to share them. I thank Ms Cohen, in particular, for getting up at 5 a.m. to attend remotely. I absolutely commend Ms O'Shea and Ms Reid on their courage in coming here to outline their especially personal circumstances and to fight for their nieces and nephews. Becoming a surrogate is such a courageous step to take, although I acknowledge they have both told us it was not courageous but rather was just something they needed to do. While they very much took pride in it, they were, as Ms O’Shea said, babysitting for nine months, as many an aunt would do.
The legal conundrums they have outlined are what we are all here to try to resolve. Ms O'Shea stated she hopes it will be resolved before Lucy turns 18 and we fully intend that to be the case. Do any of our guests have advice they would like to use this platform to share with families who are having these discussions? One issue I struggle with, and I have asked this question of a number of the experts who have appeared before us, relates to how we in Ireland can ensure international surrogacy is carried out in accordance with the Verona Principles and our other standards in cases where we deal with countries where we have no control over the standards they have in place or over their laws governing agencies? I was struck when Ms Cohen said not many people in Canada travel for international surrogacy, so I do not know whether it is fair to ask her the question. Nevertheless, she gave us three examples of countries people there do deal with. How is Canada navigating that? For me, it is the big challenge.
Turning to Ms Oakes and Ms Ó Tuama, I fully believe in the benefits of counselling when it comes to any fertility challenge. I was especially interested to hear their recommendations in that regard for surrogacy, which come from the need to protect all the parties involved. Through that lens of ensuring the full protection of everybody involved, should we consider making counselling more than voluntary and more than something people might just consider? Does there need to be an assessment to ensure everybody is in the right frame of mind before entering agreements?
Ms Sara Cohen
The first question related to how Ireland should concern itself with surrogacy happening in jurisdictions where it does not really have any control over how it works. Perhaps there ought to be a list of requirements or issues Ireland should consider, such as whether surrogacy is legal in the jurisdiction where the child is to be born. That is very important. Obviously, the free and informed consent the Senator talked about is very important and can be provided in various ways, such as by affidavit or by a lawyer signing a certificate of independent legal advice. I like the idea of a requirement for independent legal advice being provided to the surrogate, which is always very important. If it were up to me, I also like the idea of a psychological screening. Similarly, we must ensure not only that surrogacy is legal in the jurisdiction where it is to happen but that the intended parents are the legal parents in the jurisdiction because it can be a mess if, internationally, that child is nearly the child of the surrogate. Finally, it is important to be sure about the citizenship of the child and to ensure he or she will be able to obtain Irish citizenship. It can be very problematic if he or she is not and it can cause major problems.
The Deputy asked about how Canada deals with children being born abroad through surrogacy. Again, the number of children involved is not very large, but Canada does a few things. In regard to citizenship, it used to require a genetic connection between an intended parent who is a Canadian citizen and the child being born.
We no longer require that. We require that within the jurisdiction where the child is born, that child is legally the child of a Canadian citizen and therefore obtains citizenship, which is wonderful. It makes very good sense, especially for non-heteronormative family building.
Regarding its oversight, documents need to be provided to Canadian ministries. One of them is to establish if there is a surrogacy agreement written and in place. There are exactly the kinds of questions this committee has been asking about things like free and informed consent, and independent legal advice. Canada concerns itself that the hospital bills have been paid for in the other country to ensure people are not taking advantage of the other country. We require some things that are a bit more obvious such as the Canadian birth certificates of the intended parents, etc. We want the birth certificate of the jurisdiction and ideally a court order after birth. It is not just a pre-birth order because we do not recognise pre-birth orders in Canada. We only recognise post-birth orders that the child is legally the child of the intended parents. That is how we handle that.
Ms Marian Ó Tuama
I thank the Deputy for her question on the role that counselling should play. I think it is really useful for everybody. I would say that from my position. I am also conscious that I would never want somebody to feel they are being penalised because their route to parenthood was somewhat different. If somebody can get pregnant freely and easily, nobody checks on them and yet those who require assistance are checked up on. I would rather if this were framed for people as being a chance to get information. It is a space in which people can have those conversations and go through those things. People generally react more favourably to being spoken with rather than being told, "Well, we'll decide whether or not you can do this". There is a balancing of those things with counselling.
I fully agree on that. Is there enough signposting towards the counselling service? Is there anything that we, as politicians, can do to increase awareness of the services provided?
Ms Marian Ó Tuama
No. I think it is part of a bigger issue regarding all these services in that almost everybody needs to plough their own furrow and they need to find out where to go and whom to ask. When they are in it, they may be able to get more information. People get information from Instagram groups and online forums, some of which are fantastic and some of which are not, as is the way with everything in life. It would be useful to have more signposting so that people could know there are services, organisations and safeguards in place.
Do Ms O'Shea and Ms Reid have any advice for families going through these discussions? They might like to use this as an opportunity to reach out to those families.
Ms Sharon O'Shea
I made a few notes here. Openness and honesty are key. Counselling will help to open up the lines. If there is any awkwardness or anything that needs to be spoken about, it can be done. The biggest issue is the legal side of things. People need to have the proper paperwork in place. People need to know where they stand in future. At the moment, Marie, John, Patrick and I are definitely in limbo. The names of intended parents need to be on the birth certificate. Lucy was born by surrogacy. That is okay; I have that document. However, a surrogate does not give someone a legal right to a baby or anything. The names of the intended parents need to be on the birth certificate. We need honesty and openness around the whole issue. Talking and reaching out to people in this situation definitely help. We appreciate people like those involved in the Irish Fertility Counsellors Association who are coming together to help other families through this. Those of us in Donegal certainly do and I know Marie does. Please God, the ball will get rolling another bit and we will get sorted.
Ms Victoria Reid
I thank the Deputy for her question. Communication on advice to other families who are currently going through is key. These discussions are so important. Emma was put in contact with Marie and she was like a guardian angel for us. She was our source of information for where to go and what to do. I had Ms O'Shea at the other end of a phone to discuss our feelings. Talking to other people who are in similar situations is important. After Marie helped us, Emma went on to help other people thinking of taking on this journey, starting on the journey or in the middle of the journey. We need to keep having these discussions. People can reach out to Emma, Marie, Ms O'Shea, me and people like us because by coming together and having these discussions, we can help each other. We can stand together and hopefully make change.
This has been a really good session of this committee. It has been very emotional. We cannot overstate how important it is to hear from Ms Reid and Ms O'Shea. It is invaluable to us. As the last speaker, I run the risk of repeating what has been said. I really appreciate it. It is really important for the people who are listening in. There is a myth around surrogacy that it is scary. The witnesses have set out the position very clearly, particularly when they say that in terms of birth certificates and processing, they completely regard their sisters as the mothers. They are and that is the reality of it. That is invaluable not for just for us but for anybody who may not understand surrogacy and how it might work.
I am delighted that Ms Cohen has appeared before the committee to outline the Canadian model. I have recently read about it and have looked into it. She mentioned that altruistic surrogacy in Canada is broader than it might be deemed to be. I ask her to explain that a little more. If we were to adopt that kind of process, how might it work? Senator Seery Kearney already asked about people from Canada travelling internationally. That has already been covered. Ms Cohen said they do not do pre-birth registration, but I had understood her to say in her opening statement that there was a two-stage transfer process. I ask her to elaborate on that.
My next question is for Ms Reid and Ms O'Shea. Some really brilliant ladies, who had been born through surrogacy, appeared before the committee a few weeks ago. One of them suggested that everyone's birth certificate should have something on the back pointing to a website for more information. People could then get find out more information online, particularly if there was no family connection to the surrogate. I ask Ms Reid and Ms O'Shea for their thoughts about that or having some sort of register of information. I agree that the names of intended parents should be on the birth certificate in case somebody at a later age wishes to get access to information that they might not necessarily find through family.
The Irish Fertility Counsellors Association does really good work. While it is not undervalued by the people the counsellors see, it may be undervalued by others in society. It can be a very lonely place for those trying to start a family and experiencing infertility. It is something that can be dismissed by many people. There is a mindset whereby people say, "Sure, aren't you lucky?" Irish people have a terrible habit of telling people that it could be worse when something terrible happens. For many people it could not be worse and they do not feel they are very lucky.
At times there seems to be a just get on with it attitude. The service that the witnesses offer is invaluable and we need to promote it more. I assume they do not receive any funding. If that is the case, perhaps that is something this committee could explore in the context of our recommendations.
Ms Sara Cohen
The Deputy asked about how we handle altruistic surrogacy in Canada. Under our legislation, we are not allowed to pay a surrogate and doing so is punishable by up to ten years in jail and-or a fine of $500,000. However, we have always been allowed to reimburse the surrogate for any expenses she incurs as a result of the surrogacy. A couple of years ago Health Canada provided a list of various categories for which we are allowed to reimburse the surrogate and they are actually quite generous. The idea behind that was not to have surrogates for whom only the very smallest things were covered but to treat them well and in a way that we would want to be treated ourselves. If I am eight months pregnant, for example, there is no way I am going to clean a bathroom floor on my hands and knees and neither should a surrogate, so we can help with things like housekeeping and so on, as long as it is reasonable. The surrogate must provide receipts and other documentary evidence showing what she has spent during the surrogacy within those categories. Sometimes there is oversight by her doctor, who will write off that something is necessary or recommended. That is how we handle it. No specific cap is imposed by the government. As long as the expense is reasonable and is related to the surrogacy, then people can go ahead and pay it. That is how we handle that and it works beautifully. Having that list is very helpful because we know what is payment and what is reimbursement. It is quite nice.
In terms of the benefit of using post-birth orders, I want to clarify a point I made earlier. When I said the surrogate provides her consent twice, what I meant is that she does it prior to transfer first by entering into the gestational surrogacy agreement. A big part of that is her consenting not to be a parent of this child and making sure that is very, very clear. We get her consent again that she does not want to be a parent of this child after the baby has been born. We think it is very important to have these orders for everybody, particularly for all of our international intended parents who engage in surrogacy in Canada. In the case of non-heteronormative family building, it is very helpful because people have questions, whether they ought to or not, about who is a parent in those situations.
In terms of whether it is necessary to do a pre-birth order or a post-birth order, our experience in Canada is that we have never had a gestational surrogate try to keep the baby. To some extent, while I do not want to call it a waste of time, it has not proven to be necessary to wait until after the baby is born because we do not have surrogates trying to keep the baby. It just puts everyone in a funny position, as we heard from the lovely women who had been surrogates in Ireland. It is a short delay time for us but in that delay time, while we are waiting for the post-birth order, it could be confusing and problematic. Honestly, my experience is that surrogates just want to go home. They are not a parent so they do not need to be there anymore. They want to go ahead. We only have post-birth orders in Canada and that makes sense to me. It gives comfort to those people who are a little less comfortable with the concept of surrogacy, who have less experience of it, who have not had the benefit of speaking to the amazing people who have been surrogates and who are concerned that a surrogate might want to keep a child. Having the post-birth order makes sense but do I actually think it is necessary? For us, it has not proven to be necessary to do post-birth as opposed to pre-birth orders.
Thank you. I now invite Ms Reid to respond.
Ms Victoria Reid
I thank the Deputy for her questions. I agree with a register of information for the child and believe all children should have that right. While I do not know if I agree with the information being on the birth certificate or on the back of it, I definitely agree that children should have the right to access that information. It is a little different for us as a family because we are very open. Sophie knows how she got here. She knows that I gave her a safe place to grow for nine months. I know that Sean and Harry, who are Emma's twin boys, will know the same when they are old enough to understand it. I know she will have that conversation with them and will explain that our sister, Laura, gave them a place to grow for that time. However, not all cases are like that. Not all cases involve people that are so close or people within families so in that context, children should have the right to that information.
Does Ms O'Shea wish to respond?
Ms Sharon O'Shea
The same as Ms Reid, my gut feeling on it is that Lucy should know her story but I would not like to have a piece of paper that can be turned over to get more information on this child. She will be told the information and that piece of paper should be separate from the birth certificate. It should be a separate legal document. I do not want to be handing over a birth certificate for something and have people turning it over. Why do others need to know more? It is about the child needing to know more, not the person who needs to look at a birth certificate.
Openness is key and a little more law around the whole thing will make the road for any new mammy or new surrogate a lot easier. Today's meeting is positive and I thank the committee for inviting us. We will go to the ends of the earth to help and if we can do anything else, we will. I thank the committee and wish all of the mammies all the best going forward.
Would someone from IFCA like to deal with the issue of funding? I urge them to take the opportunity to do so because the service they provide is invaluable.
Ms Marian Ó Tuama
The Deputy hit the nail on the head when she said that we are not great as a society at recognising how difficult some things are. We do have a habit of saying things like, "It could be worse", and there is not the recognition that things could also be better. It is very difficult to be in a position where things that other people can achieve easily are more difficult. That can be a very lonely place.
The absence of law around surrogacy means that people have to follow their own path and part of that means they end up paying for services like implications counselling and other supportive services rather than there being a way for the State to support them. We would welcome any assistance that the State would consider giving to families around that.
Ms Edwina Oakes
Another very important point is that we are specialist fertility counsellors. We are counsellors, psychotherapists and psychologists who have done further training to become specialist fertility counsellors. That is quite unique. Not everybody has that experience, exposure and knowledge. We discuss three areas when it comes to implications counselling, which are legal, social and ethical issues. That is very important because a counsellor from another discipline might not have the knowledge or experience to deal with the breadth of what is involved in creating a human being.
That is really important. If a person is accessing counselling for grief, for example, he or she will go to a specialist in that field. Why should it not be the same for surrogacy? It could actually be quite damaging for a person if he or she goes to a counsellor who does not understand. If a person wants to really open up and talk to a counsellor but the counsellor is not very experienced, it can be really difficult.
Ms Edwina Oakes
It could be damaging if someone does not have that experience. That is why the specialist fertility counselling element is essential and that is what IFCA focuses on very strongly.
I have one quick follow-up question for Ms Cohen. Are the intended parents legally the parents in Canada? I am wondering about situations where, for example, a baby is born prematurely or someone has to make a medical decision. In Canada, are the intended parents legally the parents from the minute the baby is born? I want to clarify that.
Ms Sara Cohen
Every province has a different parentage scheme. For example, in the province of Ontario, in which Toronto is located and which is where I live, the law states that as long as there is a legal agreement in place that mentions who is the parent, if there is an issue during the first seven days after the child's birth, you follow that legal agreement and the parents can make the decision about the child. However, technically, although there is not a document or a birth certificate, the surrogate is the legal parent for those seven days until everyone has registered. In respect of the latter, the surrogate gives her consent that she is not a parent and signs certain documents in front a lawyer and the parents sign certain documents stating that they are the parents, have done all these steps properly, etc. For those first few days, the surrogate is technically the legal parent.
Okay.
I have a few questions. I have a question for Ms Cohen on the process in Canada and on the intermediaries. Who are the intermediaries, what are their roles and who engages and pays them? Is there regulation of those intermediaries? We all came to this committee with preconceived ideas about this issue. We have learned a great deal in recent weeks. Ireland seems to deal with this issue in the same way as we do with many complex and emotional issues, namely, by sticking our heads in the sand and pretending there is no problem, the consequence of which is to leave many vulnerable people at risk. We have an opportunity to progress this, draw a line under it and get it regulated. What impact would it have on the witnesses, their families or the people with whom they deal if this does not progress quickly through the Dail? The Health (Assisted Human Reproduction) Bill does not provide for retrospectively regulating nor does not it take account of international practice. Would would the impact of that be? I will go to Ms. Cohen first and then to the other witnesses.
Ms Sara Cohen
If I had to criticise Canadian surrogacy on where our legislation could improve, that area is exactly where it could improve. We have some wonderful intermediaries. There are many good aspects to surrogacy in Canada. Do I believe the law should put protections in place? Yes, but it should also make it easier. It is a little bit confusing the way our law is written vis-à-vis those intermediaries and the way we as a federation works. These must be regulated at a provincial level. I would like it to be regulated not exactly the same way as an adoption agency, but in the same way as we have licensing and regulation requirements for such an agency. It would be very helpful to have the same for a surrogacy agency. We do not have that. The only jurisdiction I can think of in North America that has that is New York state, but that is a little bit outside my wheelhouse. Currently, these are businesses like any other business. Most of them are run by former surrogates. Many of those former surrogates are counsellors, social workers, etc., and that is how it works. That is a recommendation I would make if the drafting of the legislation were up to me.
On that point, the intending parents would pay and they would show their expenses after the fact.
Ms Sara Cohen
There are a few payments intended parents would make. To pay an intermediary is different from reimbursing a surrogate. There are various models on paying intermediaries. Under some, one would pay upfront for access to a system to find a surrogate. Under others, one would pay a very small amount for them to help one organise one’s profile and one only pays after having found a surrogate. There are different models on how that works in Canada. The payment for the intermediary is different from any reimbursements to the surrogate. Those are completely separate.
Thank you. I move on to the other witnesses.
Ms Sharon O'Shea
The Chairman asked about the impact on us if the process does not change or if it takes a long time to change. I hope it will have changed before Lucy reaches the age of 18. I will remain positive about that. If it does not change, it means I have three children when I only have two. It means my sister is guardian to her daughter when she is "Mammy" to her daughter. It means Lucy has legal rights to perhaps my home, my family life or anything to do with me as time goes on as she is noted as a child. She has no proper paperwork in place for her legal rights going forward. We are in a very awkward situation. We are a very close family, as the Chairman can see, and it is not a problem but if we were not a close family, that may be a problem but, thankfully, for us it is not. Whatever about me and Marie being on this journey, we have to get this over the line for Lucy. She needs her rights as a little girl to be fit to get on with her life and, please God, to start her family some day as the person she should be stated on her birth certificate alongside the names of her mum and dad.
I thank Ms O'Shea very much for that. I will bring in Ms Reid.
Ms Victoria Reid
I agree with all the points Ms O'Shea made. Essentially, the impact is that it would leave Emma’s children vulnerable and deprive them of some of the rights all other children have. It means Emma’s fight will have to continue. Her fight should be over; she has fought for long enough. It is not good enough. We had a discussion with a certain Deputy when Sophie was probably one. Seven years ago, we were told that talks were taking place and that changes would be made. It just is not good enough to keep kicking the can down the road. Change has to happen now. These children, mammies and surrogates have to be looked after. Emma has fought for long enough and her fight has to end.
Would Ms Ó Tuama like to come in on this point?
Ms Marian Ó Tuama
The first thing that comes to mind for us if nothing changes legislatively is that it will not stop people from acting as surrogates. It will not stop people from finding ways to have their families. It will stop them being able to do it in a fair and equitable way for them and their children, but it will continue to happen. We cannot stop that by not legislating for it. All we can do is make it unsafe and unfair for the parties involved. If this does not proceed, we will see, in our counselling rooms, parents, surrogates and children who are heartbroken because the way they live their lives and organise their families is not recognised by the State in its reality.
I thank Ms Ó Tuama for that. We will finish up now. I thank all our witnesses for coming in today. Ms. Cohen's early start this morning was particularly impressive and I thank her for that. I find it very frustrating that in order to achieve progress and make changes in this country, especially in the lives of women, in the majority of cases, women often have to come to tell their stories and bare all. I appreciate how difficult it is for witnesses. We have had many parents of children born from surrogacy before us, and we expected each of them to tell us their very personal stories. I wish that did not have to happen but I thank the witnesses for doing it. Hopefully, we can take that valuable information and use it to come up with a very robust system we can progress to start meeting their needs. I also acknowledge Emma who is here today. She has a mighty sister, but I am sure she is very well aware of that. I thank you all for attending and engaging with the committee.
The joint committee adjourned at 12.39 p.m. until 1.30 p.m. on Thursday, 9 June 2022.