Kathleen Funchion presses departments on surrogacy, existing children

Just to say as well that I think it's great that we'll finally have our first meeting and I think that over the next number of months when we have all of our public meetings it will be very helpful for everybody to listen in to all the various groups and hopefully we'll dispel some of the myths that are out there in relation to surrogacy because as Deputy Higgins has said there's a lot of very genuine families going through this process. We're short on time and I know what it's like to be chair so I'm going to be really brief. I wanted to ask the Department of Justice in relation to the difficulties that you say are in Professor Romani's recommendations. I know that you say it's in the issues paper but is there two or three specific difficulties that you see in his recommendations just because he would be coming into the second session would be helpful to know that. I just wanted to briefly ask the Department of Children as well in relation to existing children that obviously have already been born and are living here. Have you any, I suppose, opinions or thoughts on on should there be maybe separate legislation or something to deal with children who are existing? I'm just very conscious of families that have potential difficulties in terms of a parent being very sick or very real problems in the here and now that maybe can't wait and just what your thoughts are in relation to that. I did also want to ask in general if any of the departments had looked at other models or similar practice but there might not be time to get to that but just given that you were coming here today I'm sure you did look at other jurisdictions and where would you think we could maybe take some of their work or some of their examples from. Thanks Chair. Thank you. Who would you like to direct that to? Department of Justice and Department of Children and then if there's time for the other one, if not, it's fine. Thank you. In relation to the challenges that were identified in relation to some of the special rapporteur's recommendations. One related to the recommendation that that provision be made for a court application process to take place before a child born through international surrogacy outside the state be brought back to Ireland. We saw that as creating quite a few practical and logistical difficulties in terms of arranging a remote hearing, say, I mean, and the current situation in Ukraine, I think would highlight the difficulties that could be involved in trying to arrange a remote court hearing in a foreign jurisdiction. There would also be issues around the timing of it because the family may need to, you know, their visa for whatever country they're in could be running out. There would be running up costs in accommodation and medical care while they're abroad. So prolonging their stay in the country may present practical difficulties. There would be the issues around the remote hearings and making sure whatever reports and so on needed to be before the court, trying to procure those at a distance could create practical difficulties. The other main issue that we saw was in relation to the proposal for the process, which would only involve a court application after the child was born. That was seen as being inconsistent with what is proposed in the AHR bill in relation to domestic surrogacy, where there would be two stages of the process, an approval process at the very outset involving the AHR regulatory authority, and then at the other end when the child was born, the parental order process that goes to the court. We thought that there would be an inconsistency there and that a two-stage process would be required for domestic surrogacy, but only one stage for an international one. Those are two of the main practical issues that we saw in relation to it. The Department of Children could come in briefly on the existing children. Yeah, thank you. I think the deputy makes an important point in regards to existing children in a family formation through surrogacy, and I think that's part of the work with respect of the committee. I think that going forward that any work or policy development or measures that are recommended on international surrogacy shouldn't just be focused on future arrangements and the intending parents that equal time and effort should be looking at the existing arrangements. I think that the concerns of both of intending parents and those that have already formed a family through surrogacy are very similar in terms of parentage. I think it's really for the committee to kind of determine the direction and the recommendations in that regard. I note that you are meeting with the Special Rapporteur and in his report and on recent commentary on this matter, he has spoken also about the existing children. Okay, thank you very much. In relation to your third question… We can come back to that if there is time at the end. The other potential is that if each of the witnesses do a written response in relation to the international model or other models that you looked at when you were developing your policies. That would be great. Thank you. Thank you, Chair. I suppose I'm a little bit concerned about some of the discussion earlier in relation to, you know, it was kind of obvious through the open statement of the Department of Health with the urgency for the AHR bill and I totally understand that, but I mean, do you think that we're looking at a new piece of legislation then for what the remit of this committee is, or do you think we're looking at amending the AHR bill? I would ask all three departments that question and you could very well turn around and say, well, it's up to this committee, but I really understood that this committee was given a three-month task in order to make amendments or possible amendments to the AHR bill. I don't know whether I still have that opinion now after hearing some of the discussion earlier and I suppose I just would have a concern around that. If it is a new piece of legislation, you know, I think that kind of needs to be, and maybe we will see that as we go through, but I just wonder what your own opinions are on that? Okay, thank you. If we start with Tamara de Felp. Tamara de Felp. Thanks. Thanks, Deputy. As I said earlier, it's not entirely clear to us that a legislative solution will be the outcome of your deliberations. Our minister is open to accommodating a conclusion from this committee, but it pushes us quite close to some recess, so the committee would need to agree a specific recommendation, and such a recommendation would have to be accepted by government, and then if legislative provisions are deemed to be appropriate and possible, that would have to be carefully drafted and agreed. We're open to that, but just mindful of the complexity of the issue and the fact that it may not be entirely, I don't presume it will be your conclusion that we would legislate in the AHR bill when it's all bottomed out. Is it just the time frame? Sorry for cutting across, I'm conscious that there are 50 seconds left. What if this committee came up with great recommendations as amendments to their AHR bill? Is it just the time frame that's the issue? Absolutely, just the time frame. We will support the committee's conclusions in every way we can. Don't you see how frustrating that must be, though, for people who have been waiting for surrogacy? You know, regulations or legislation, whatever the appropriate word is, that, you know, as it's been said, it was 2017 when it was in preload scrutiny, and now all of a sudden, when we're starting to meet, there's this panic about it. Maybe it's unfair to put the questions to yourself, but it just seems very unusual and also just very frustrating that now all of a sudden, it all has to be done before the summer recess when the bill was sitting there for years. I don't think it's so much amendments we were expecting anyway. It would be more almost an insertion of a, you know, in a perfect world, insertion of a new part to do with international surrogacy. So in a way, I mean, I think the Department of Health kind of felt that international surrogacy perhaps doesn't belong in our bill anyway, because we are regulating for domestic health care, basically. So, I mean, Do you see it potentially as a new piece of legislation then? Well, yeah. I'm just trying to tease that out. Like, I'm not trying to be difficult on anybody, but I just think it's important that we know because, you know, like, we really want to be constructive in this committee and get the work done and the demand, like, you know, people have been waiting for far too long already, and it's not fair, and ultimately, it's not fair on children. So I just think, like, if that's what you think, I think that's fine. But at least if we know that, it helps inform the work, you know? Yeah, well, it was just, I think our bill ideally would be used as a legislative vehicle to put in a part for international surrogacy. So I think that point might be important. I think that's an important question. Can we just briefly go to the others? A new piece of legislation or the AHR bill? As I said previously, Chair, it depends on what the recommendations of the committee are as to where they fit. So, I mean, as I said, if there are recommendations around the Guardianship Act, clearly for us, but if the recommendations of the committee, I'm sorry, I'm just going to speculate, sorry, and apologies for this, but just speculate that if the committee were to recommend that a particular role be given to the AHR regulatory authority, well, you know, it will have to interact with that Department of Health legislation, but we just will have to wait and see what the committee says. I just reiterate when the government decided on this in January, it asked all three departments to take account of any of the recommendations that came forward for appropriate legislative amendments, and it asked the Department of Health to take account of the recommendations in the development of the AHR bill. So, and I don't think there's any difference between us on that. There is this tension. There's always a tension when you're bringing forward legislation as to, can you hurry up and do it? Could you hold the bill back and fit something else in? I have a miscellaneous provisions bill at the moment that we're trying to stop drafting so we can publish it and move on while receiving requests for committee stage amendments to go into it. There's always a tension around time, but that will be a matter for government to balance out in light of the recommendations as to the pacing of the bill and the proceedings. Thank you. Mr Dove? With apologies, Chair, I don't have much more to offer than what speakers are and agreeing with previous speakers on this and our commitment in this department, whatever the recommendations are, to work collaboratively with colleagues. I take the point of a deputy function that people have been waiting on, and points made earlier by Senator Mary Searley Kearney on this as well. Our commitment will be to work with colleagues, whatever the recommendations may be. Ms Dove? Thanks very much. You addressed the Children's Committee as well a number of months ago, which I found extremely interesting, and your report I think is excellent and I suppose like a lot of people I'm wondering too why some of the stuff hasn't been implemented. But the question I want to ask really comes out of the earlier session around this discussion about are we potentially looking at new legislation or are we looking at amending the AHR bill or inserting whatever the language is in relation to change in that bill? I would like to know what would your opinion on that be in terms of which do you think is potentially a better option? It would seem to me once we have the AHR bill here, why don't we use that as the framework? And then if that's not going to be changed or amended, I note in your statement you say that it will be contrary to children's rights. So where does that leave us if we don't actually change that bill? And then the final question, if there's time, is in relation to when you're saying your report recommends for international surrogacy that parents apply to the High Court for parentage and you have subject to satisfying a range of prescribed criteria. Do you have any examples of what you might think would be prescribed criteria? That's just for information I'm wondering. Thanks Chair. Thank you Deputy Function. So I must confess to being rather taken aback by the suggestion earlier on that international surrogacy doesn't belong in this piece of legislation. I mean the question I would ask is if it doesn't belong here then where does it belong? You know my big concern is that knowing how legislative programs work that if this doesn't make it into this bill that we could be looking at a very very long wait before any separate bill dealing with international surrogacy makes it back to a process like this and that intervening period would continue the problems which we have identified around children coming to this jurisdiction where they are legal strangers to one or both parents where citizenship is an issue where identity is an issue. So from that perspective in my mind I'm very clear in my mind that a comprehensive single piece of legislation that addresses everything to do with surrogacy and not just surrogacy but also donor assisted human reproduction is the appropriate way forward to avoid the situation where it drops off the political priority list on the basis that we've just passed a piece of legislation on that and we don't need another one or we don't need it soon. So that would be my concern. Now as to how you go about dealing with that of course that there could be different different models for how you go about that. I mean some of the comments earlier on today there were comments made about well the fact that no other country has has yet put in place a specific tailored piece of legislation around around international surrogacy and they have instead adapted their family laws to deal with it instead. Now go taking that approach of adapting family laws rather than dealing with it in a specific piece of legislation. First of all there are no proposals in Ireland about what that might look like. Secondly that gives rise to its own difficulties so for example adoption might be what they use in France as a means of plugging this gap but it's a very different adoption process it can be completed within three months I believe which is very different to here where it takes much longer. Adoption also was unsuitable for for some people due to health reasons if for example you have a cancer patient who was unable to conceive due to cancer they may find themselves also unable to adopt for the same reason and equally the proposals in in in my report around a specific piece of legislation also took the view that it's better to target surrogacy rather than adapting general family laws because surrogacy gives rise to issues which don't arise in a general family law situation particularly around the right to identity so my report one of the criteria was around ensuring that the child's right to identity could be protected that you have a donor who is not anonymous that there's a record-keeping situation whereby you can file details of the donor's identity and so on and that that would be part of the process whereas if you rely on general guardianship laws for example that wouldn't be protected in the same way that would be a gap in in general family law that wouldn't give that protection for the child's right to identity so and you know there are other other issues there some of the other criteria were around ensuring that the that the surrogate has genuinely consented uh given free and informed consent to the process which you could do in a number of ways around ensuring that laws governing the sale and trafficking of children are complied with again those are prescribed criteria which i suggested in my report but which would be absent from the picture if you relied on general guardianship law as the vehicle for recognizing family relationships so i am i don't have a huge amount more to add uh only that i think that the report that you did um publish is going to be extremely helpful for us and we're very lucky to have that as sort of i know there'll be other other stuff said as well throughout the three months but i think it's it's a really good um starting point for us i would wonder um chair about the value of maybe having the ministers come in given the the comments that were made by the various departments earlier and i know we're under a tight time frame and i know that we have a schedule of meetings but i do think that we really need clarity in relation to is the ahr bill or is it a new piece of legislation i personally think it should be the ahr bill and would advocate for that but i just would like to see that and if it's not available in the short time that we at least have a written commitment from each of the ministers of exactly um i didn't get a sense of urgency earlier unfortunately from any of the departments that this was something that they would you know that they were was really on their radar so that's not a question for professor ormani just taking the opportunity to make that point okay and thanks to professor ormani not just for today but for all the work in this area it's really really helpful okay thank you