Kathleen Funchion Questions Pre-birth Orders, Backs Post-birth Guardianship

Thanks very much Dr Mulligan as well for coming in to us. Sorry, is this not working? The wrong mic is on. Is it working now? No, I don't think so. It's flashing green or something. No, okay, perfect. Sorry, I know the sound doesn't always pick up if anyone is listening in. Thanks very much for coming in and for both the briefing document and the opening statement. It's actually a point in your briefing document that I wanted to ask you about in relation to you say there's been some criticism of the choice to use post-birth rather than pre-birth orders and that you disagree with this criticism. The problem with the pre-birth model is that it creates a situation whereby at the point when a surrogate gives birth to the baby she has no legal rights whatsoever in respect of that baby. I just wanted to know if you could maybe expand on that, explain that out because I suppose there's another school of thought that the pre-birth order is a better maybe system in terms of, well, from a logistical point of view and also from, I suppose that's the whole idea of surrogacy. So I'd just be interested to hear a little bit more on that, if you could expand on that point. Now, and just to say I would totally agree that, you know, it's really important for a woman to have bodily autonomy, but I think that there is some jurisdictions, I'm potentially wrong on this, but I think in Canada that up until the point of birth, obviously the woman who is pregnant has the total bodily autonomy and then the parentage is transferred straight away. So I'm just wondering just to tease out a little bit more in relation to that. And I just found that interesting in your document and if you could expand on that firstly, please. Thanks. Thanks, yeah, that's a really interesting point. So this is, this is a tricky question. So there is, there are some people, as you say, who are in favour of a post-birth model, which is what's in the domestic legislation at the moment, the proposed legislation at the moment. There are other people who are in favour of a pre-birth model. So just to explain a bit about what a pre-birth model looks like is you, and this is very common in US states, so Massachusetts, California, possibly Colorado. But basically you go into court and before the child is born, and essentially you then re-attribute parentage between the people involved before the child is born. So when the woman gives birth, the child is not her child. Okay. And I have a difficulty with that because I, you know, you have to, you have to make a rule about who is the parent. Okay. I have a difficulty with a legal situation, which is the situation in those jurisdictions, whereby that woman has no legal rights whatsoever in relation to that child. She is just given birth to. So like literally that child leaves her body. She's just given birth like any woman gives birth and there's no legal relationship between them. That woman is in a vulnerable position. And obviously she is a self-determining autonomous person who's made this decision, but still she has gone through what is always a difficult experience in any circumstances. I think it's problematic for her to have no legal rights whatsoever to that, to that child. And I think that the situation whereby she has none is very, very problematic. And I mentioned in the briefing document, you know, especially in this country with this country's history of difficult adoptions, potentially adoptions with a lack of consent. You know, we have to be very careful about how we deal with these parentage issues. And I think that a good compromise, however, I'm not saying that the intended parents should have no legal rights either. Right. This is the difficulty. Who gets the legal rights at the point of birth? I think that a good compromise that the intended parents have at least some guardianship rights. So I do see a difficulty with a situation whereby the birth mother is the mother and the intended parents have no legal rights at all. That's a problem. But I think a good compromise is where they are at least appointed guardians. And then you gradually you then at a point later than that, you transfer parentage. And I think that that's a good compromise. I think that is does appear to be in the legislation as it's drafted at the moment, but it's not terribly clear. So I would I would like to see that more clear in the ultimate version of the bill if it does go through. And so, yes, that is a supplementary to that. Sorry. Like, obviously, surrogacy is totally different than adoption. And do you not think that in a situation where it's regulated and people know exactly the arrangement they're entering into, that there should be no question of to whether that person would want a legal right over the baby? Are you saying that that's in case they change their mind? Well, to some extent. I mean, all surrogacy arrangements, you have to consider the problem of surrogates changing their mind. Right. That's always going to be a risk in surrogacy. It very rarely happens. In fact, it's more common that the commissioning parents will change their mind. And yeah, and that's why the whole pre-birth model can be a good thing. Absolutely. So one advantage of the pre-birth model is that surrogates say, well, I don't want to be left with this baby. You know, I never wanted to have this baby for myself. Absolutely. That is a difficulty. But it's a tricky situation. I don't think that the pre-birth model, I think it's too blunt an instrument to deal with that situation. So I think a better approach is to have a situation whereby the birth mother is still the mother at birth. The parents, the intending parents are guardians. And you can have a situation whereby they cannot divest themselves of rights to the child, but she can. So, you know, it's a little bit more nuanced looking, but it doesn't, a model that doesn't have pre-birth orders doesn't mean the surrogate has to get left with the child. And that is a real difficulty. But I think more broadly as well, you have to bear in mind that all surrogacy legislation has to contemplate this problem of surrogates changing their mind. It will always be a possible issue, rare, but possible. OK, so you have to think, what do we do in that scenario? But parental orders can never deal with that. Parental orders are fundamentally for consensual based situations. You know, the courts will always have to step in where there's a dispute. The state will usually have to step in where there's a dispute. There is no easy solution to the change your mind scenario. You know, so a pre-birth order, you still have to find some way to square that very, very difficult situation if there is a change of mind. But I would say that that's why it has to be 100% as much as possible, really regulated, really. You know, I think they talk about counselling and beforehand and everything in some countries. It has to be like as much as we can not have a situation like that. Because I think I would be worried that if we're entering into legislation with the mindset that somebody potentially will change their mind, that we're in a really not a good place. And what I mean, that's not their genetic child either. So where does that leave? I'm just I find that found that very interesting in your in your and I think it's good. I think it's good to have these discussions. But I suppose I would just be I would be nervous of us having that situation because I think it is totally different than adoption. And you're in a totally different space. And I would say the vast majority of people know that entering into that agreement. And as you say, are actually more likely to be saying, well, we don't want to be potentially left in a situation where we're going to have to care for this baby that we weren't intended on having. And is actually not, you know, genetically related to us. But I just wanted to kind of tease that out a bit more. But what would you then? Can I just ask one in relation? Can I just say one thing in response to that before you ask the next question? Like, I absolutely agree with that. Right. And I'm not saying that, you know, that you shouldn't have pre birth orders. And therefore, if the surrogate changes their mind, she gets to keep the child and that's it. That's obviously not just either. But you have to find some way to essentially you'll have to make a best interest assessment after the child is born. The courts will have to step in in that change of mind scenario. You know, of course, I'm not saying that the genetic parents should just have no access to the child and it should not be their child. That's certainly not what I'm saying. But equally, a situation whereby the surrogate who has gestated the child, who is she's not nothing to the child. You know, and I think that's really important. No, it's really, really important to look at, you know, this this idea of the of the gestator as just kind of like a carrier as just a container. She's absolutely not. You know, she she is someone who grew that baby, who gestated that baby. She's very important and ethical surrogacy regulation fundamentally must acknowledge that. And part of how it does that is by looking fairly at this question of pre birth and post birth orders and looking at questions of identity as well. You know, so I think you really have to be in surrogacy. You really have to be aware of this narrative that the gestator is just a container, that she's just a vessel, you know, because that is it's not what she is fundamentally. Yeah. And I would totally agree with that. And I don't think by advocating a pre birth order that you would be kind of advocating that position. But I suppose where would you see the potential solution in that? As I say, I think I would be in favour of when the child is born, I think the intended parents and the birth mother should all have some legal rights to the child. And ultimately those rights will if they disagree, which they don't usually, those rights will have to be adjudicated upon by a court. You'll always have to go to a court with that situation. In my view, you'll have to look at the best interest of the child. And so some kind of compromise whereby she is a she is a parent of the child, but the commissioning parents are guardians or potentially parents as well. There's no reason that a child only has to have two parents, you know, and so I think you need to ensure that everyone at the point of birth has some legal standing. And you then you then make sure everyone has legal rights that if they disagree, the courts will ultimately have to resolve that dispute. But I do think pre birth orders and, you know, I'm not the only person that has difficulties with pre birth orders. There are a lot of advocates that have problems with them. Apart from from the perspective of the woman, it's very important to have a post birth best interest analysis of the child. So, for example, the UN Special Rapporteurs reports on this, which I mentioned in my briefing document, have expressed concerns about pre birth orders because they decide the child's destiny before the child is born. There's no there's no there's no subsequent court process whereby the interest of the child are considered. So from both the perspective of the child and the surrogate, pre birth orders are a little bit tricky. OK, that that sort of position where you would have both the parents and guardians, how long would you think that would need to be in place for? I think it could be very short. I mean, usually in the I think I'm not totally sure in the legislation. You've essentially until you go and go through the court process. Ordinarily, what legislation will allow for is a period of time when the surrogate can object, when she can raise an objection, essentially. And you just need to make sure that that period is not like when she's still in hospital and still potentially under the effects of anaesthesia. And, you know, very, very vulnerable. You just need to make sure that there is a period of time. And that can be a short period of time, but I think it has to be a period. And all surrogacy regimes will generally allow for a period of time during which she can object. And the international human rights documents, so the UN Special Rapporteur's views, would also suggest that it's very important to allow that period of recovery from birth for the surrogate to form a view. Okay, thank you. Thanks very much. I just want to say as well, I found this really good, like both the contributions from members and from yourself, Dr Mulligan, and it's the whole purpose of this committee. So it's great. And it's actually great to have a little bit of extra time to kind of get into some of the more nitty gritty of it. Just out of curiosity, following on from the earlier discussion, do you, is there any data that you're aware of, of situations where a surrogate changed their mind? Or is there any like cases or kind of landmark court cases or anything like that? And then the other question I have is just, I'm kind of asking this to a lot of people who come in. Is there models in other countries or whether that's certain states in America that you think are maybe best practice or that you think that we should be looking at? Thanks. Thanks. Yeah, great questions. I mean, a problem with surrogacy generally is an absence of data. So often you're just dealing with court decisions. And a problem when you're just looking at court decisions is you're often only dealing with ones that are actually litigated as opposed to settled outside of court. So it's very hard to get to the nub of how many surrogacy arrangements would actually go wrong. It's possible that the Human Fertilisation and Embryology Authority in the UK might have statistics on it. But I'm actually not sure that it does. Essentially, the overall understanding is that there are there are not that many that go wrong, that, you know, your overwhelming majority of surrogacy arrangements go as planned. And there are small numbers. But you do come across like headline cases like the original. I think the first one of the first US cases was called the Baby M case. That's one of these change of mind cases. But it involves the traditional surrogate, i.e. somebody who was genetically related to the child. Okay. Which is, as I understand it, is completely off the table here. Yeah. And that also changes the data a little bit because historically traditional surrogacy was much more common. And interestingly, in the UK is still quite common. So you you probably it's it's more likely that you'll have a change of mind there because, you know, the woman is genetically related. Yeah. And so that confounds the data a little bit in terms of where the there's really, really good data coming out of the there's a family research centre at the University of Cambridge. And they do like a lot they're doing like a longitudinal study of children born through surrogacy. And so, you know, they have they kind of look at them age seven age 12, etc. And there's brilliant data from them. So they're really good on identity and all those issues. I think they but they they probably don't deal with people who change their mind because the people who are in really disputed situations don't necessarily then want to go and be involved in a longitudinal study about surrogacy. Yeah, so I guess my answer is it's very hard to know, but people think a small number. Yeah. And then so the other points, the other the other question was models of surrogacy. So yeah, a difficulty is that not that many states regulate it. And I suppose some states only regulate it domestically and don't allow foreigners to avail themselves of it at all. Some states actively do allow foreigners. And this is delicate, but there may be an intention to draw in kind of surrogacy tourism if they do that. And so you don't necessarily those models may not be what you necessarily want to model the law. And my own view is that the English model is quite good. It's been working for a long time. And as I said, a really great feature of the English model is that, you know, open surrogacy was the default. Like it's very common for people to know their surrogates well. And that's there are surrogacy agencies, a lot of nonprofit surrogacy agencies in the UK that will like match people up with their surrogate. And there they've always advocated a position of openness, which is an interesting contrast to donor assisted reproduction, where when that started out, the general practice was that you would not tell the child they were donor conceived. Whereas the culture and surrogacy has always been more towards openness. And that's, to my mind, a very, very good thing. Yeah. So I think there's a lot to be learned there from, I guess, from the practice as well as from the law in the UK. Thanks. Thanks, Chair. Okay. Thank you, Chair. And thanks very much as well for the presentations. I just want to firstly say I was glad to read your point in relation to the funding, because I felt that last week that although it wasn't being maybe explicitly said by the Department of Health, but there certainly was, you know, a kind of an inclination being made that, you know, potentially this committee and the work that we have to do would delay the AHR bill when, I think, pre-led scrutiny was 2017. And as it was said in your document, it was 2019 was the last time there was any discussions with yourselves and some of the stakeholders. So I think it was a bit disingenuous of them last week to try and indicate that all of a sudden there's this big panic on it, you know, just because this committee is, is in place. So I just wanted to, I have no questions in relation to that. I just wanted to say I was glad to see that. In relation to the pre-birth, this discussion we had earlier, pre-birth versus, I was glad to see in your document, it's the view I share of either at birth or pre-birth. And I just wondered, I know you have some information in relation to that, but just from your own practical experience, is there reasons why you would kind of advocate a pre-birth or at birth parental link? Then I have a really practical question, which I think I might know the answer to, but I just want to ask it. In relation to a surrogate having previous pregnancies, is that obviously just to see that how somebody's health and wellbeing is during a pregnancy? I just wanted to ask that practical question. I also wanted to just make the point that in your list of expenses, I was glad to see that you mentioned childcare and that you mentioned life insurance, because I think there are things that maybe are sometimes overlooked and that were really good points. I just kind of wanted to agree with, I really thought that the briefing document was very, very good. I agree with a huge amount of the information, so I don't have a lot of questions, but just that around, because I find that very interesting, the pre-birth, post-birth, at-birth, parental situation, and I really think we need to be trying to advocate a model for pre-birth. I think it's in the best interest of everybody, to be honest. Just reviews on that, then the previous pregnancies, and I think that's all for questions for now. Thanks, Chair. Okay, thank you. So, the pre-birth, post-birth assignment of legal parentage is obviously a very controversial thing, and different people, you know, different international bodies, lawyers have very different opinions on it. I suppose as a more lay person, you know, doctor dealing with people, but I think most lay people as well feel that the whole idea of surrogacy is that the intending parents are going to be the legal parents and the surrogate isn't going to be the legal parent. And for the vast majority of cases, and again, it comes back to the importance of counselling, and, you know, that for the vast majority of surrogacy arrangements, that's what happens. And there are some small number where there may be conflict. I think, as the Speaker in the previous session said, there will always be situations where things will have to go to court. And, you know, there possibly will be cases in the future where there is a dispute. I suppose my feeling about the legislation, the way it's drafted at the moment, is that it is all drafted, so that the intention of the whole procedure is that the legal, the intending parents will be the legal parents. But the legislation is drafted the opposite way, that the surrogate, even though that's not the intention of anyone involved, that the surrogate will be the legal parent. And that then it's up to the intending parents to apply for a parentage. And, you know, if there's a dispute, they have to go to court over that dispute. I'm not a lawyer, and I may be being simplistic, but if it was even directed the other way, that the intending parents were the legal parents from birth. But if the surrogate had an issue, that there was a mechanism for her to apply to the courts and to contest it, that might be, it just, it just seems illogical that the whole intention is that the intending parents are the legal parents, but the law is saying the opposite. It just doesn't make sense to me. And from a medical point of view, surrogacy pregnancies are similar to donor egg pregnancies, because the woman who is pregnant is not carrying her own egg. She's got the intending woman's mother's egg. And we know that donor egg pregnancies are a little bit more complicated. There's a higher incidence of high blood pressure, bleeding problems, and a higher incidence of being delivered prematurely. So I was talking to some paediatric colleagues in the last few days about this. So there is a higher incidence of those babies ending up in intensive care in hospitals and decisions having to be made about their care. Some of them are very healthy, go home straight away, but during that critical time, it really seems wrong that the intending parents who are going to be the legal parents don't have the right to make those decisions over that child's care. So my feeling would be that, and I think that certainly that was the feeling, as I said in my paper, of 85%, and those were GPs, obstetricians, and other people working in IVF, roughly split 80 or 90 in each group. They all, you know, 84% felt it should be assigned at birth. In the draft legislation, it says that the surrogate can agree for the child to go to live, to reside with the intending parents from birth. But it doesn't say what happens if she refuses to do that. And, you know, I think, again, things like early bonding, skin-to-skin contact with the baby is really important. And there are medical reasons, you know, things as well, reasons why it's very important for children from the very earliest stage of their development to bond with their parents. It helps bonding, and particularly in a case like surrogacy where the intending mother hasn't been pregnant, and she hasn't been, you know, feeling the baby move, and her partner hasn't been feeling the baby move. And, you know, it's really important for bonding for them and for the baby that they get their baby as soon as possible, and that it is their baby as soon as possible. What was the other? Sorry, I'm... The other one was just about... The previous pregnancy. Is that just like... That, again, is a very good practical. Yeah. I suppose, again, there's a medical reason for that, that, you know, unless any of us has been pregnant, we don't know whether we're going to have a complicated pregnancy or an uncomplicated pregnancy, and some women develop complications during pregnancy. Some women on their... And those are more common in a first pregnancy. So, again, things like high blood pressure needing to be delivered early. I have seen cases where women have, on their first pregnancy, have ended up with a major hemorrhage and lost their uterus and they can't carry another pregnancy again. So, I suppose if you know that... So, again, it's coming back to protecting the surrogate. Yeah. If you know that the surrogate has had uncomplicated pregnancies before, then it's very likely that she'll have an uncomplicated pregnancy again. But you don't want her to have a really complicated first pregnancy that affects her chances of having a healthy pregnancy for herself in the future if she doesn't have any children. Yeah, of course. From an emotional, a psychological point of view, it is difficult because I've been at another webinar a year or two ago where there was a very strong argument, how dare you tell us that... How dare you tell me if I haven't had a baby that I can't be a surrogate for somebody else? So, there is an issue about personal autonomy as well. And is it right for me as a doctor or for us as legislators to say that somebody who hasn't had a baby can't be a surrogate for somebody else? It is a difficult ethical question, you know, and I can see the arguments in favour of that. But I suppose from a medical point of view, I think it is important that the surrogate is somebody who's not... that we try and avoid complications for the surrogate in the future. Yeah. Thanks very much. I just want to say I really agree with the thing about the pre-birth parental situation. I think it's so important and I would be fearful if we don't have that in place, that we're going into this in a very unusual kind of frame of mind. I think it's really important like that, you know, as you're saying, everybody understands with surrogacy that the intention is that the intending parents are the parents. And I just think it's by having like a pre-birth order, I think that's definitely the way forward. So, I was glad to see that. And it's interesting to see that the vast majority of the medical profession agree with that too. So, thanks for that. Sorry, I just, I forgot one thing. Yeah. I think it also protects the surrogate because there has been a case in Thailand that everybody knows about where, you know, an Australian couple had twins via surrogacy and one of the twins had a serious genetic problem and that couple didn't want to take the baby home and left the baby with the surrogate in Thailand. So, I think from the surrogate's point of view, it protects the surrogate as well, because what happens to the surrogate if the intending parents decide they don't want the child anymore? So, I think for all reasons, and again, this, you know, if the surrogate has been cancelled prior to the pregnancy and knows that this is the situation, you know, and I suppose there are worries that the surrogate, you know, in the days after childbirth that she may be emotionally or medically not fit. So, to me, that even strengthens the argument for making the decision prior to birth and before the whole thing starts. Yeah. Thanks. Thanks, Chair. Thank you.