Kathleen Funchion presses for pre-birth parentage in surrogacy

I wanted to ask Dr Lydia two quick questions. One is in relation to children who are here who are existing already born through surrogacy. You mentioned that in your document. If you could expand a little bit briefly on how we can, because I think we really have a responsibility as legislators that this element anyway has been going on for far too long. There's a whole bunch of children not recognising it's not right and we think we really need to act on that. So if you could tell us a little bit more about how you see that kind of playing out. And then I've really become kind of fixated on the pre-birth, post-birth, at birth, parentage situation. I put my cards on the table and I've said it since the start. I think the pre-birth model is the best one. You say for international Dr Lydia post-birth, do you mean at birth? Because for all of the various reasons that we could consistently hear around, you know, potential medical issues, issues and who's going to take responsibility for that. I just see that there's lots of difficulties around the post-birth and I think if you have a good system that's done correctly, pre-birth is the way forward. And then I might come back in for questions for Garrod and Shane, but I do just want to say I really appreciate you being here, sharing your personal stories and very best of luck to Shane as well on his own journey. Thanks, Chair. Okay, so Dr Bracken, if you want to come in on that? Yeah, so the first question was in relation to children who've already been born through surrogacy. And I would very strongly argue that that needs to be prioritized in the legislation. You know, we have so many children living in Ireland who've been born through surrogacy and their family relationships are not currently recognized and they're left in a really undesirable position of not having a legal relationship or a permanent legal relationship with both of their parents. So it absolutely needs to be addressed. What I have proposed is that a model similar to something like the Children and Family Relationships Act, sections 20 to 22, which currently allow for those retrospective declarations of parentage to be made in cases of DAHR that were undertaken prior to the commencement of the legislation. Something similar with the necessary adoptions could be used very successfully in the context of children who've already been born through surrogacy. So it would allow the intending parents to apply to court for this declaration of parentage to recognize either or perhaps both of the intending parents who are not currently recognized as legal parents, provided that certain proofs are provided that certain proofs are given to the court. It appears to be a relatively straightforward process in the context of DAHR and so I would argue that it should be a very simple process for surrogacy as well in respect of surrogacy that's already been taken place. And I suppose we have the kind of model for it within sections 20 to 22 of the Children and Family Relationships Act. So that's the model that I would propose for the retrospective recognition of parentage. In relation to the pre-birth or the post-birth recognition of parentage, I suppose I created a distinction between domestic surrogacy, which I think can be facilitated through the preconception approach, and international surrogacy, for which I think a post-birth approval process makes sense, simply on the basis that it would be very difficult for the state to kind of sanction in advance parentage, which has been established through a procedure that's been undertaken abroad. That's not to say that it couldn't happen, so perhaps an application during the pregnancy might be possible. However, I feel that the post-birth transfer of parentage in international surrogacy allows the Irish courts to check that certain ethical safeguards happen and adhere to all the way through the pregnancy up until the birth of the child. It's not a perfect system by any means, because it does mean that when the child is born for the purpose of Irish law, they might not have that legal recognition in terms of the relationship with the intending parents. But I suppose what I have proposed is that where the intending parents are both listed on the foreign birth certificate, that we might have kind of a fast track application in Ireland, whereby they can obtain a parental order, recognising both of them as legal parents, and the application would be granted unless it is fundamentally contrary to an agreed ethical framework for surrogacy within Ireland. But having the post-birth judicial process allows for scrutiny of the ethical standards to ensure that we're maintaining the integrity of the ethical framework and ensuring that recognition is based on it, but it also allows for consideration of the best interests of the child in that process as well. So I suppose that's primarily the reason why I think a post-birth process in terms of the international arrangement would be the more appropriate way forward. But in domestic surrogacy, I support the preconception transfer of parentage. Okay, thank you very much. And did you have a question for Geroldin? Yeah, if we had more time, I would have had more questions for Lydia too, because I just, I wonder about the, like, that still leaves people in a limbo in terms of medical decisions and stuff post-birth. And like, is there a way of having a pre-birth, but like, subject to kind of three months, I don't know what the right phrase is, but you know, if something was to go wrong, that it could be reneged, but that it's there, if that makes sense. But I don't think we have time, unfortunately, to go into all of that, but I just wanted to put that out there. I think, I just think that there's a lot of complications if it's, if it's post-birth and we're kind of still stuck in kind of the same situation that we're currently in, which I think we're trying to move away from. I just wanted to ask about the Canadian situation. I heard Mary asked earlier, and that was one of my questions, because I've been looking into that one as well. And I know Garrode has mentioned that last week, and also when you came before the Children's Committee. So, if there was any other additional information, and then the point that you made about potentially having a surrogate listed on the long birth cert, would you see that as an optional process? Because I'm conscious that there will be very many surrogates who don't actually want to be on the birth cert, but they don't see that role for themselves. So, would you say that you're thinking that's an optional process? Thanks. Thank you. Okay, so in terms of additional information on Canada, I mean, I suppose the point I'd make is that in the next couple of weeks, you will have solicitors attending before the committee from the Canadian system, and I think they would be able to give you far more information. My experience of Canada was as somebody who tried and failed to have a child for unknown reasons through the Canadian system, so I think they would be better placed to give you more insight than I could. In terms of the long form of the birth cert, that is a good question. I mean, what happens in the United States and Canada is that the couple have the option, the intended parents, that is, when the child is born, that they, as the intended parents, regardless of their gender, can go on the birth cert, and the surrogate does not need to appear in the birth cert. In the UK, as I mentioned, the surrogate must appear in the birth cert. She is the legal mother at the point of birth and therefore must be on the birth cert. We encourage our members to discuss every aspect of a surrogacy journey with their surrogate prior to the commencement. And if it's required by local law to make an agreement, to make that agreement, if it's not required, as is the case in the UK, to still have some form of agreement and to discuss with the surrogate what will happen when it comes to the issuing of a birth cert. Currently, most couples, regardless of what's available in Canada and the United States, when they go there, will put the surrogate and ask the surrogate to be named on the birth cert, simply because when they come back to Ireland, having a birth cert that lists two men as the actual parents doesn't work for Irish institutions like the Passport Office. So we encourage all our members to discuss this really important issue as to how the birth cert is going to look. Of course, if the option is there to include the details on the long form of the birth certificate, that should be another aspect of the discussion between the intended parents and the surrogate. And clearly, it is better if the surrogate is willing to be a participant in that and to have her name listed on the birth cert. But the current reason for having a surrogate mother listed on the birth cert that's issued in the United States and Canada is simply because when you come back to Ireland, it makes life easier if it looks like a normal birth cert. Okay. Thanks very much, Chair, and thanks for the presentations. Like Senator Siri Kearney, I just want to acknowledge, in particular, the role of the Department of Foreign Affairs over the last few weeks has been incredibly difficult. And also, actually, to acknowledge Senator Siri Kearney, because for some of us who were navigating it for the first time as well, we were just as much on the phone to her, and she was always available. So I think that does need to be acknowledged, and you're dealing with families in very difficult situations, and there was always so much, I suppose, care and sensitivity given, so just to say that. Part of my question actually leads on from what Trevor just said there in relation to, you know, if there was some sort of a set of guidelines or, like, we're dealing with this, the pre-birth, post-birth, at-birth, parentage, transfer of parentage. I've kind of focused in a lot on that, because I find I think that's going to be the crux of a lot of it. If we had a pre-birth parentage model here, would that make the situation easier? And, for example, I know nobody envisaged what happened in the Ukraine. Nobody could have seen what was going to happen there. But would that have made some of those situations easier or more straightforward, if that makes sense, if that had been in place, or does it not really change anything for the Department of Health Affairs? Is your vote still going to be the same? And then the other question I have is, when the Department of Justice were last in with health and children, we were asking about potential other models that people have seen internationally that they might look at or think were good practice. I don't know if, since the last time, you've looked at any other models, or maybe heard some of the stuff about the Canadian model in the earlier session, and just out of interest for the Department of Foreign Affairs, because you're dealing with so many countries, is there one that you think, you know, maybe not better is the right word, but is there one, is there other systems or examples that you think work well? Thanks, Chair. Thank you. Who do you want to go to first? Foreign Affairs, I think, please, and then Justice. Well, I suppose, in terms of the models, I don't think we would. I mean, I think it's important to, I mean, we have a certain role and a certain, you know, outward-facing experience, but the policy is not with us, so we wouldn't really be looking at the models in that sense, so I think we would refer to others on that. In terms of the experiences that we've had to date, again, I think we can say from our Department's perspective, there would obviously be a benefit to us if there is a pre-arrangement process that brings legal certainty, but that's just, from the perspective of our own Department, that's not to say that should obviously be the policy, and I think that's just one factor that the Committee very wish to bear in mind. Can I just ask, sorry, would that mean that the, would there be still a need for the emergency travel document, or does it mean that it could be kind of issued faster, like, is there any practical examples of how it would be easier or better for your Department? And I understand you're only speaking on behalf of your own Department, like. I think, again, we would say it's hard to envisage, you know, the abstract, but, I mean, the key, I think the key difficulty that we have is applying guidelines in new circumstances where we, as has been mentioned, we need to examine the law in that country, and the notice that we may have of a birth may be relatively short, so it does put pressure on the Department, and it does seek that, and the law in those countries might be quite unclear itself if you're dealing with a country where surrogacy is unregulated, you might get a legal advice that itself has ambiguity, so from those perspectives, the Department is in a difficult position occasionally, where, to just give us an example, if there was a regulatory agency in Ireland that was responsible for looking at jurisdictions and providing advice, one could see that that may take some burden off the Department of Foreign Affairs where we come across those situations. as I said, potentially at short notice, so that may be of benefit to us. Thanks. Thank you. And Department of Justice? Yeah, I mean, in terms of models for recognition of international surrogacy, it's an issue that countries across the world, in Europe in particular, have had to deal with, especially in recent years. We're not aware of any particular country that has found a specific model or a specific legislative framework. To the best of our knowledge, most countries deal with this in their existing family law framework. Adoption, in particular, has been used as a route to parentage in international surrogacy cases, particularly in European jurisdictions. I mean, in terms of a pre-birth or post-birth model, the AHR bill provides for a two-step process in relation to surrogacy taking place in Ireland, the preconception stage and then the post-birth parental order. So, it may be that's something. A pre-birth approval may not in itself be sufficient, but, again, it's getting into questions of policy there. Okay, thank you. Thanks. Okay, thank you very much. Sorry, you want to come in, Ms. Van? Sure. Just to come back, really, I suppose, on the ETC process from the parents' point of view and our experience of how long it can take and that kind of thing, and so to take Ukraine, for example, which was quite a large volume of our applications came through Ukraine prior to the war breaking out, and we had a resident embassy there, and so applications were taking about three to six weeks to be processed following the birth of the child. There are a number of documents that cannot be put together until the child is born, and we are also dependent on the Ukrainian authorities and their processes and how long it takes or the authorities of any country that we're in. So, it was taking about three to six weeks after the baby was born in that jurisdiction. Again, as we've mentioned, if it's a new jurisdiction where we haven't had an ETC application in the past, it can take quite considerable time to put the process in place and to ensure that all the documents meet our standards. So, I think it's really important from the parents' point of view that they engage in the process early, as we often only hear about the birth after the fact and are aware that they're in country waiting for the baby, but we may not hear about it until after the fact. So, I think it is important for parents to really, and I know they get legal advice locally and here in Ireland, and as they should, and we advise them to do that, but they should do a lot of research around what is involved and talk to others maybe who have been through the process and just be aware of what's involved and, you know, be prepared for the level of paperwork and maybe the time that it might take because, you know, sometimes I don't think they are aware of actually what's involved in it once the baby is born. So, that would be, from our point of view, I think that would help to manage the work on our side if parents were fully aware of the situation.