Kathleen Funchion: Surrogacy, pre-birth parentage and legal certainty

I am glad I got in in time to ask a question because I was listening online. First of all, thanks very much for being here and your presentation and your document you sent us in have been very helpful. I just kind of wanted to touch on that I really agree with what you are saying about prohibition is not the answer and I think that really is one of the key points to all of this because if you make something just totally illegal you are not living in the reality and particularly you are not living in the reality in the modern world that we live in nowadays. So I think it is really important that the message goes out of what needs to happen is really good, really robust, strong legislation and regulation so that there is right practices and so that you won't have the exploitation of either women or children. So some of the questions I was going to ask have been asked. I just wanted to ask the pre-birth versus the post-birth parentage situation. I personally think where there is a pre-birth model it is better because in terms of the child there is no question mark over who the parent is and particularly we have heard a few examples when a child is born potentially if it is premature and they need medical intervention that if there is any sort of a question mark over who is the legal guardian, who is the parent, who makes those decisions and there is a lot of surrogate mothers that do not see themselves at all as the mother. And you know are very very clear about that and kind of protects them as well but I will say the example you gave of a seven day cooling off period for want of better words potentially is a possible solution to that but I just wanted to know if you could maybe expand a bit more on that and just also bearing in mind that like as I said surrogate mothers in a lot of cases they do not see their role outside. You know they do not see themselves there is no genetic link in a lot of cases and I think we need to respect that too. Yeah, thank you very much. I think what you are referring to in your question is the need for legal certainty. Yeah. Yeah. A view seen from the perspective of the child and I am afraid that that is a very risky concept in this context because there are certain, I mean it sounds convincing but at the same time I think that it does not leave any room for post birth breast interest determination. And in particular an assessment of how the process prior to the birth took place whether there was any coercion whether I mean it really would legalise pre-birth enforceable contracts including which include a transfer of the legal parentages at birth. And that is exactly what we do not want. So I do not think it is an argument and I think we should not use it in this particular context. That is my view. The other thing what I would like to say is that and that is actually what you started with and that is very important that you realise that it is important to prohibiting commercial surrogacy is an important and therefore avoiding creating the practice of surrogacy into black and grey markets. That is a very good thing. But because of that at the same time people tend to interpret the concept of sale in a restrictive way to not to be too uncomfortable and to you see because you see because you don't want to do that because you want to create legal pathways. But please stick to the concept of sale. It is something which should not be allowed and it has very clear elements. It's transfer, it's payment, it's transfer and it's the exchange of payment for transfer. These are the three interlinked elements which define sale. And that should be avoided. Thank you very much Chair. I suppose following on from both what Senator Ciarney and Deputy Coslow have said. So this might seem like a stupid question but is there a way of doing some of the best interest assessment before the child is born? Like to a certain extent if people are arguing that it has to be done after a child is born but then you take the example of the seven days. Like, you know, are you into the and saying is that really enough time? Sort of similar to what Patrick was saying but I just I don't really understand why you couldn't have a system where there was the pre birth but bodily autonomy which I really feel strongly about for the surrogate and then when the child is born and the baby is born that parentage transfers over and I can understand having some sort of a built-in kind of cooling off time but I just think like appointing a legal guardian like who would that even be and you're getting into a kind of potentially messy situation that you know the person who's a parent might make a different decision than a legal guardian. You know, for example, if you have a very premature child, you know, there's lots of kind of different things to consider there. So I'm just wondering is there a way of kind of combining those for in relation to the best interest of the child and having some of the assessments done kind of done kind of beforehand or is it the case and as I said, I acknowledge this could be potentially a stupid question but does the baby have to physically be there first before you can do that type of an assessment or can some of that be done with kind of a built-in well if anything goes wrong in this, you know, 20 days or 10, 30 days or whatever it might be then the parentage could be revoked or something like that because like legal certainty is obviously in the best interests of a child and then going back to the birth cert situation. I really feel like we're kind of getting into very strange territory if you potentially have kind of a number of people named on your birth cert is definitely going to red circle you as being different. So is there a way of just having a register of that information, you know, where it is very accessible and even maybe from a younger age, not that you have to even be 18, maybe from the age of 16, you know, that you would be able to access that information and get all of your information, but it doesn't have to be on your actual birth cert. If that makes sense. I'm just thinking of the kind of like how complicated it is in any passport situation at the moment, which all of us would appreciate. I can't even imagine what it would be like if you have multiple people potentially and just and then you're getting into a situation where that child is being treated differently. And it's not just discrimination, but it's, you know, processes and stuff are going to be longer for that child potentially because of that. And I appreciate you might not even have the answers to all of those. It's kind of like it's kind of a bit of thinking out loud. Yeah. On the on the post best interest piece, I just don't know how you cannot do it all again, to be honest. I mean, you could you can't go through some of the tests pre in a pre process. But if you think about one of the key things that the special report talked about, you have to ensure no, no, no, no money changed hands and the transfer of the child. And let's ensure there's no illicit practices. There's there's a lot of different things that can go wrong in between. And I think you have to just provide a basis for making sure you've picked up all of those things that X hasn't happened, Y hasn't happened. And like, I think some of the some of the cases that you've probably you probably discussed at the committee one where there's an American case where the woman became pregnant with three children. And the commissioning father didn't want didn't want three children, wanted to wanted the third to be aborted gestationally. And then she didn't want to do that. And obviously things like bodily integrity protects against those kind of things. That's and the legislation is clear. It's going to be her decision about what happens in those kind of circumstances. But there are other things that can happen in between. And you probably have to have you have to have the post assessment to pick up that I think. Yeah, and you certainly can do some in advance as well. And I think Professor Conor Mani would have said out to the committee, you know, how you can do both together. But as Tanya would have mentioned, you do need to have some element to post birth best interest assessment just to ensure, particularly from the sale of children perspective, that it is all above board and that there hasn't been the sale of a child. And I think that was very well set out by the special rapporteur. So you can certainly do some of the pre birth. And if you look at Conor Mani and what he suggested, but there do needs to does need to be some element post birth. And I don't think you can get away from that if you are looking at this from the best interest of the child. But do you think there could be a way of having the intended parents as the legal parents subject to a certain amount of days just so that you have the legal certainty? That's not maybe because we didn't get a chance to ask, but the legal guardian, like maybe I'm wrong, but it sounded to me like that was just somebody else totally unrelated to the situation for the seven days. And that I don't think is a good situation either. You know, you could you could have a social worker step in as the legal guardian in between. You know, I mean, if you if you look at children in the care system, sometimes social with this, you know, the Tuesday is the corporate parent. So I mean, there aren't a huge number of children conceived in this way. So you could have a social worker who is a specialist in the field and the steps in and in the interim period. Just while this this process is happening, you know, I do think that it's important to say that we've had a number of meetings now today. And I really do think I've said it in a few other meetings, but there is a lot of solutions there to like even just the reference to the Child and Family Act. You know, sometimes we have a tendency, I think, in this country to make or something so complex. Let's just not talk about it or do anything about it. And that's a really wrong approach. And I'm I think we've really in particular failed the children that are already born through surrogacy. So hopefully we'll have our report and it will be all acted on quickly, which I know sometimes doesn't happen in this this house. But I think we all have a responsibility to really push for that because I think actually it was the the other lady that spoke that said, you know, there's a serious responsibility on us as legislators. And I have always thought that in terms of we don't really have the luxury to a certain extent of having a position. We have to take on the responsibility that we that we saw it when we got a mandate to be in here, and that is to legislate. So I just think that it's great in a way that all of the children's rights organisations are on the same page in the sense that it needs to be done and it should have been done a long time ago. So just thank you for your time as well this morning. Thanks very much. Chair, first of all, I just want to say thank you so much to the three of you for being here and for sharing your story. And in particular, I think it was Georgina just said there recently, like in the vast majority of cases, everything is 100% fine and there does tend to be this kind of a frenzy about, you know, and that's not just to dismiss some of the cases that maybe it didn't go 100%. But so I think that's a really important point to bear in mind. I wanted to ask about the birth cert too. I think that's kind of been covered, but I suppose maybe I just want to see what you would think of this potential suggestion that like what you're saying, you would have some sort of like a register or a record where people can check that information, but that the intended parents are the ones that are listed on the birth cert. And then specifically for Georgina, your statement in relation to language, I thought was really interesting. You say language around surrogacy is important. And from kind of people you've discussed it with, it's important to them too. And I've gotten that feedback myself from some people who have been surrogates that they don't actually, and I know everyone is different, but they don't actually like to be referred to as mother. And just given that a lot of surrogacy now, it's the intended parents or at least one of them is actually the genetic parent. I'm just wondering if you could maybe expand on that point in relation to language. And just to say again, very sincere thank you. It's really great to hear. And it just goes to show when there is open and transparency, like that is the key to so much of it, but that, you know, we obviously need legislation. And I think what Rachel said was really kind of showed that that if there had been legislation, people were kind of didn't know what to do, didn't know how to deal with the situation. If there was kind of regulations and legislation, there would be so much easier. But the fact that it's an open system and people are talking about it, that's key to it as well. So just particularly to Georgina around the language and then if anyone has any comments, any further comments on the birth cert, but I do know it's kind of been answered a lot already. Thanks, Chair. OK, thank you. I suppose if I could just make a quick comment about language, if that's OK. Again, like everybody is extremely different, but for me personally, and from other people that I've spoken to as well, my birth mother is my birth mother, because she is maternally linked to me and she gave birth to me. However, my mum and dad are my mum and dad. Because to me, the title mum and dad are earned. You can sort of like technically become a parent. It's quite easy. Well, in a lot of cases, it's quite easy to become a parent. But that doesn't automatically mean that you earn that title of mum and dad. So when people said to me, they're like, oh, you've got two mums. I'm like, no, I'm happy to correct them because I think education is key. Because and a lot of people don't ask questions as well because they're scared of offending somebody. And I'm not offended. I want to educate people. I know she's my birth mother, but they are my mum and dad. But I think I'd never be offended. But I think we need to talk about it as we all are to to educate people on language is important in many, whether it's, you know, gender, whether it's, you know, surrogacy is it's important and we need to educate people. Thank you, Rachel. That's really interesting. And I, I made my statement prior to you too. And I noticed both of you refer to your surrogate as your birth mother. So I don't want to offend either of you in my comments about language. And I think that from my experience of working with these, all these groups that the overwhelming feedback I've had from surrogates is they don't want to be considered the mother. They're not the mother in any sense in their perspective. And they, they want to do that, I suspect for two reasons. Firstly, to protect themselves a little bit, because if you start referring to them, you know, from the beginning as the mother, that then forms a link. And that then makes things potentially more difficult. And secondly, they want to respect the intended mother as the mom. And they wouldn't want to overstep that mark in making her feel like she's got competition for that title as, as a mother. So for me, that's why language is really, really important that I would always refer to my surrogate as my surrogate or Suzanne. And I wouldn't refer to her as my mother in any sense because she's not. And I think that needs to be reflected in law as well as in education of people. You know, I've had the question, like Rachel mentioned, you know, who's your, who's your real mum? Who is your mum? And you think that I only have one real mum. I only have one mum. I have my mum and my surrogate and they're very different people. And I love them both for different reasons. But my surrogate is never my mum. A little bit about birth certificates, which I know we've mentioned in terms of forward facing. But I'm also aware that in Ireland, you have a backward facing problem of people who've already been born through surrogacy and who have birth certificates, who have their surrogate and possibly their surrogates husband or their father on, you know, depending on the circumstances. And we mustn't forget this group of people because it's great looking forward at creating laws to help the future. But also people who have been born have an absolute right to have their parents as their legal parents and to have all of this put into place in a way that they are socially and legally secure in their family structure. So we also need to think of how that can be catered for in a bespoke way of making sure that they are also thought of and their journeys are recorded. So that their futures are also, you know, as stable and secure as our futures have been. Thanks, thank you. Myra, did you want to try to see if we can get your speaker going? Any better now? Perfect. Oh, my gosh. Sorry, a bit of a dinosaur when it comes to technology. I think really to just add on to what Georgina and Rachel said, that Wendy is, I don't consider her my mum, I might call her birth mum, but it would never be mum. It's just something that's not fathomable for me at all. My parents are the ones that brought me up there, mum and dad. So I think identity wise for me, yeah, I think the ladies have already covered most of it, but for me personally, yeah. And I think it just comes down to probably, it's good to have a general idea on what language is appropriate, but it has to be decided for each individual between the parents and the surrogate really. You know, especially for younger children, there's a lot of this like tummy mummy phrase going round. And again, making sure that it makes sense for people at the right time, especially for the child. For example, if there's a child. It is just a character that affects us, maybe it's a human being. And as a child, maybe a child. It is just a person that could have been found on it. That's where it is. Just a very big part of the child. Now, let's see. Here a friend. We can tap on it. In the family, if you can't breathe into it. Let's see. Here, let's move on. If you have a child. If you have a child or child. If you are a child. If you have a child. This is just a child as one child. There is a child. You have a child. If you have a child, do you have a child.