Kathleen Funchion Urges Urgent Regulation on Surrogacy Rights

Thank you very much Chair, I was listening to the contributions on the way, I have a few questions, first of all in relation to, I might start with Dr Niall Muldoon and his colleagues, for me we have to have regulation, because obviously I think things are going to happen, whether you have regulation or not, people can have a certain view and be against something, but unless, it's going to happen regardless of, what, anybody, whatever decisions are made by any person who is in government, so I just want to get your views on that, and also in particular, those children that are in a very urgent situation in terms of potentially medical situations with their parent, you know, maybe very serious medical issues, and at the moment they're not, their family status might not be recognised, what would you recommend in relation to, is there some sort of an urgent course of action that could be taken? For those children, and then I'd just like to ask Cueva as well in relation to, just child psychology in general, like I'm very much of the view that, there's all sorts of different types of families nowadays, in the modern era, which I welcome, there's people who parent alone, there's people who have two parents, three parents, four parents, one parent, there's a whole bunch of situations, and it doesn't matter, to me anyway, whether it's one person parent and alone, or whether you have, you know, ten parents, or whether they're male or female, but wouldn't, I just want to get your view in general, that, in relation to children, and child psychology, there's a range of issues that all children face, and it's not necessarily any connection or any link to surrogacy, you could have what some people would deem a traditional family of mother, father, male, female, everything on the outside looks great, 2.5 children, and those children, for whatever reason, may be, you know, seeing child psychologists regularly, and that's, I'm not saying that's criticism, I think, I'm a big believer in counselling, and I actually believe that play therapy, in general, should be available in all schools, and all children should have some type of play therapy, because I think it's very, very good for them, but I'm just trying to get to the point that I think it's really important that we're not somehow singling out children who have been born through surrogacy as having issues that other children not born through surrogacy don't have, and I just, I just, I think it's really important that that message goes out very loud and clear in the committee today, so I'd like to get your views on that, so maybe firstly, Dr Muldoon around the regulation, and particularly those urgent cases, because I'm even conscious that this committee, I think, let's say we have three months in our report, and then by the time all that gets into legislation, you know, there is some really difficult situations out there, so just interested to get your views, thank you. Sure. Thank you very much, Deputy. We'll go to Dr Muldoon. First, we have four minutes for replies, and if we stick to time, it means we'll get another round of questions in. I mean, listen, I think it's crucial that we are regulating, and we have to move forward with this, and again, the concept of having the bill going forward without access to, or without regulating for international surrogacy and retrospective parental rights is, it just can't be fathomed. You know, we need to prepare, we have children here who are currently in that limbo land, in that situation in which their parents haven't got full legal right to provide for consent in various different issues, whether it's education or medical or whatever, so we need to prepare the legislation for that as quickly as possible. I suppose that's why the preparations that have been talked about are the pre-surrogacy arrangements, so that as much, you look at the process as starting as early as possible, so that we know who's in charge, who's going to take what responsibilities at what stage. You allow for a post-birth scenario as well, in case anybody changes their mind there, there has to be some sort of a framework that allows for those disputes to be settled, and the decisions are made as quickly as possible, again, for the benefit of the child. The best sense of the child suggests that they should at no stage be left without somebody who has full parental rights, who is willing to accept them. You know, and that's crucial, so that they can be looked after in the best way possible, and that's the legislation that you, as legislators, need to bring forward here, so that we can protect all of those children, regardless of where they're born and what the background is. When they come back to Ireland, they have the rights that they deserve, that every other child has, because that has been set out in a regulation in a manner that's appropriate, and the best sense of the child is served that way, and again, for the children in that current circumstances, we need to know that we're going to be looking at the retrospective scenario, so that those children, the legal limbo is taken away, and there's a clarity to who has rights there. Dr. Neonil? Yeah, and thank you, Deputy Function. Yeah, and just briefly, just to say that, yeah, I think it's important to put on record that the rate of psychological adjustment is actually better in families where there has been assisted methods of reproduction. So I think any pathologizing of these children is something that belongs way back, it belongs sort of in the early 1980s, really, and so psychology has moved way beyond any pathologizing of children who are born in different family formations. It's been really interesting, actually, this morning's session. I just wonder, it might be an unfair question for Dr. Muldoon, but just, obviously, we've discussed regulation, and that is best practice, and I think that's what everybody wants to see, and that's starting from, you know, as early as possible. So in that context, do you think that a pre-birth parentage model or something similar that's in Professor O'Mahony's report, and I might be able to ask you to comment on his report, but I think his work in 2020 is invaluable and actually really holds a lot of the key things that we need to be doing. So I'm just wondering if you wanted to make any comments on that, and if you don't want to answer, you know, that's fine as well, because I'm kind of pre-birth versus post-birth. I think myself, the pre-birth parentage model is, in my opinion, the way to go. I think it really marks out that surrogacy is just another way to parent, and it's very, very different than other forms like adoption, and sometimes we get people somehow comparing them or linking them. I think they're very, very two different processes, and I think we need to make that very, very clear. So I'm just wondering, and since we have time, and I always ask a pre-birth, post-birth question, so why change the habit now a few weeks in? I'm happy to take that question. Thank you. Yeah, so when we were looking at what model that we thought would be appropriate in the best interest of the child, we considered the report of the Special Rapporteur on Child Protection. We also considered the children's rights standards that are set out, particularly in the RONA principles, and what they are seeking to guide states in doing and implementing those child rights principles. So we, in our observations, as you'll have seen, have proposed that, similar to the Rapporteur's report, that a pre-birth model of transferring parentage be established in domestic legislation, so that the 2022 bill will be amended to bring this into account. And we were particularly guided by what the RONA principles state in terms of if there have been adequate pre-surrogacy arrangements put in place, as is currently provided for in the 2022 bill, so in terms of consent of the surrogate mother, of the parents, of the donor, if there has been independent legal advice given, etc. And if the surrogate mother is permitted to confirm her consent after a period of time after the birth, that there is no impediment, therefore, from a children's rights perspective, to having a pre-birth transfer of parentage in place. So this is why we recommended it. We also think that, as the Special Rapporteur has outlined in his report, this would involve an application for parentage to the courts alongside pre-authorisation of the surrogacy on the basis of a set of pre-surrogacy arrangements. And what this would allow for is an assessment of the best interests of the child to be taken into account by the court before the surrogacy is even proceeded with. And so in doing that, it would allow judicial oversight all the way through the process and not just post-birth and would also ensure clarity for that child from day one. And that's... Thank you. Just to add to that, again, excuse me, you're starting to gather that identity information as well very early, what that we're going to hopefully offer to the child in the future. And again, the process starts earlier, people get more chance to adjust and there's opportunities still post-birth to adjust again. I think you're looking at the best possible way of making a framework work from that point of view. Thanks. Thank you very much, Chair. Ms. Neonel, have you anything to add to that? No, it's not something I have thought about, so I'd just be answering off the cuff if I answered. Yeah. The pre-birth model or the post-birth model. I suppose I'm thinking the pre-birth model might have the delays before the intending parents go wherever they're going for their baby. But at the moment, I see the dilemmas. I have seen children in the practice where there have been three- and four-year delays around parental orders. So, yeah, I haven't actually thought clearly about it. Okay, thank you. Thank you very much, Chair. And thanks. I'm delighted that you were able to come back, Professor. The very first meeting that we had, I felt when you came in in the afternoon session, it was great because the first session, I would say, was... I felt there wasn't a sense of urgency from some of the departments and there was a sense of this is so impossible, how can we ever do it? As it has been detailed in your paper now since 2020, there's a range of solutions. And that's actually what struck me about this, all these committee hearings over the last number of weeks, while it is complex. In fact, there's a bunch of solutions there staring us in the face. So really, the only question I have, because I'm glad that you got the opportunity to come in and get on record your response to the issue of paper, and you also gave us a very detailed brief as well. But in your opening statement, you say it's my considerate view that these concerns are based on an incomplete understanding of the recommendations and the associated legal landscape and are beset by logical inconsistencies. So I think the last day you were in, it emerged that since you had done your own paper, there hadn't been any further follow-up or contact from government or from any of the departments. And I'm wondering, now that this committee is sitting and we've had a number of positions, has there been anybody or any follow-up from government in relation to your 2020 paper? Thanks. Thank you very much, Deputy Function. The simple answer is no. And it has been my approach in my three years as Special Rapporteur to very much maintain a kind of open-door policy in my dealings with government departments. I've always been very happy to discuss any of the issues arising, be it specific recommendations made in my reports or more general issues arising in everyday law and policy work. So I've always been happy to have those conversations. I have had conversations at various points with officials from the Department of Children in particular about ongoing work in their remit. And, you know, I think that's a very helpful and productive way to do things, especially on something as technical and complex as surrogacy, so that you ensure that you're not kind of speaking past each other. So I do think it would have been good and still would be good if there was an opportunity to sit down and have some of those conversations to try and work out some of those points of detail. But to date, it hasn't happened. Yeah, I have to say I'm really disappointed to hear that because I thought even the fact that when it came up at our last meeting or the last time, sorry, that you would have been in, that they hadn't been in contact, that they actually would have realised, well, they should be in contact and have gotten in contact in the interim. But I will just say that, like, certainly I can't speak for anyone else, but I know I'm delighted to get your response back to have you in today to put it on the record. And I really think that a lot of the work that you've done in 2020 is the framework for us. And it makes our work, in my view, very easy, even though I know it's difficult and I'm not trying to dismiss the difficulties or any issues around it potentially. But I think it's, you know, we have a really good framework and I hope that that's what we'll be kind of using going forward in our report. I'll certainly be advocating for that anyway. And just to thank you for all your work again. Thanks, Chair.