Kathleen Funchion urges retrospective recognition in AHR bill

Thanks very much Chair, I was not actually expecting to be first, that is the danger when you do not check the speaking rota, I want to first of all thank everybody for all of their contributions to Richard and Cindy as well that are joining us through Teams and I am sure with the time difference had an early start as well, so just some questions, I had a number of questions for Annette and then she answered all of them in her opening statement, but I do still have a few firstly for Annette, so in terms of, and you gave a very helpful list of recommendations which I think is great for us, because when we are drafting our reports, it is great to be able to look through it like that, in terms of the retrospective recognition, would you see that, I know one of my questions to you was should this be included, should international surrogacy be included in the AHR bill and you have made that point very clearly in your opening statement, so there is no need for me to ask that, but do you think, is there anything else we should be doing or looking at in relation to retrospection, do you think it should be included in our recommendations in our recommendations and then hopefully in the AHR bill or is there something else that we should be looking at in the interim, because I am just so conscious of all of the children out there that are currently in limbo and I know you deal with that yourself on a regular basis as well, that is one question. The other one for yourself, Annette, is in relation to, you know, just probably your opinion, and I might ask Cindy this too, that in Canada, as I understand it, they accept the Ukrainian decision on parentage, and I suppose just your views on that in relation to Ireland, and is that something that, do you think that we need to have our own, obviously, regulations in place first, so I will ask those to Annette first, maybe, and then can I come back and ask, or will I ask all my questions together? Maybe just ask them together. Okay, so then for that question also to yourself, Cindy, just maybe confirmation in relation to, as I understand it, Canada, but maybe that depends on the province in relation to accepting the Ukrainian decision from an international element on parentage, and then I just wanted to ask both Cindy and Richard as well, so from their own personal experiences, I am taking it then, because I think you are in Illinois, Richard, that in your situation, where you deem the parents, given that you had your own children through surrogacy, I am just wondering from the start, because that is another serious issue for people when they are in this legal limbo, and if a baby, as I always say, maybe is born premature or needs some sort of medical intervention, if there is a grey area over who the legal guardian is, that obviously causes huge, not just stress and upset, but really serious issues for medical personnel as well. So just, I just was wondering if that was your own experiences in terms of if you were the parents, sort of from the moment the baby was born, because I just think that illustrates one of the serious difficulties that we have here. And then my question for Verona as well, is more your opinion, I suppose, on this, from what you are saying, there have been judgments where they say, look, we cannot legislate, and it is over to the legislators. Do you believe, I suppose, in your own opinion, that the judiciary would welcome, you know, this being dealt with and being dealt with through the AHR bill, because this is our nearest mechanism, I suppose, to deal with it? Thanks. Thanks. Okay, thank you. Who do you want to go to first? Maybe I will go in that order, Annette, Cindy, Richard, and Bronwyn. Okay. Thank you, Deputy. Your question with regard to retrospective, I think, is a really essential question, and it is something that I feel really, really strongly about. I am working every day with couples where the second parent has not been recognised and where they have children. Those children are not statistics, they are living, breathing children. Not only do I think that retrospective recognition should be included in the AHR bill, but I think that if there is any way, I am not a legislator, but if there is any way our legislator can find some means to bring that aspect forward from a child's rights point of view, could it be added as miscellaneous at the end of some legislation? I do not know. Those children are here, they are here now. I am working with particular couples where, and the Deputy is aware, where the biological parent is very ill. I have worked and advised other couples where the biological parent was extremely ill and was in hospital. The stress and the anxiety is unbelievable. When you do not have any answers, when parents are in that distressed state and they are worried about their children and you have got to say to them, there is nothing we can do. Can you bring an application to court for me, Annette? No, the baby is not two years old yet. There is nothing I can do for you. That is not OK. It is not OK. It is not OK when you are working, when you have a distressed mother or wife on the phone where the marriage has broken down. Senator Siri Carney has mentioned the weaponising. When you see that happen in reality, that is not OK either. It is very difficult to have to say to a mother or to a second parent, what are my rights? I am the de facto parent and I am at home here with this child. You are racking your brain and you are talking to various other people and legal people that you think there must be a way around this. There must be a way around this, but there is not. So those children are here. They are here now. They are Irish citizens. Their parents complied with the best guidance that was available. They complied with the 2012 guidance. They have affidavits of consent from surrogate mothers. Those surrogate mothers have affidavits from independent lawyers. I just think it would be just awful. Something is going to go really badly wrong. I just think nobody wants that. People are anxious. This is to do with children. Let us bring it back. There are three words here. It is children, it is parents and it is families. Those families, those children, they are not secure. They are not safe in this country. Some of those children, when you think about it, they left the Ukraine when there was a war. Our government saved them. Absolutely this country was outstanding. We stood up. I mean, I was receiving phone calls from lawyers in various other countries around the world and saying, how are you doing what you're doing? What's happening? You know, we were world leaders. Those children are back here in Ireland. And not only do they not have a possibility of having a parental relationship with their mother. But at the moment, those children in this country, they don't have any parent. Because we've got to bring a court application. So, it is very, very, very urgent. And it is top of my agenda. And I really do hope that whatever means, it can be found to mark that as a priority. I understand with the AHR bill, there is going to be a regulatory authority. And there is lots that has to be put in place. But my fear would be that all of those procedures that, you know, we need to identify and look at. And I have the photos in my office and on my phone of all of those gorgeous Irish children. They are out there and we really, really, really need to look after them. So, yes, I think it is essential. It is not okay. It is just not okay as it is at the moment. With regard to Canada recognising Ukraine parentage, my opinion on that is that I think going forward, once there is, I think we should, we need to front load this checklist at the regulatory authority stage. And I think, as I said, there is, there is precedent for an automatic guardianship. In 2015, it was automatic, two new categories of automatic guardianship created. I think it is something when this legislation is enacted as part of the review process that we can see how it is actually working in reality. And it may be, I mean, I would hope, it would be my hope that we will come to a point where certain jurisdictions and countries that parentage from, from those countries will be automatically recognised. But we have got to, I think, bring forward the legislation, bring forward the regulatory authority. And this is going to be, as I said, a constantly evolving, developing, progressing area. And we need to progress with it. So, thank you very much, Deputy. Thank you. If we are out of time, do you want to come back at the end for some of the answers? I do not mind. No, it is okay. Look, we will go. Okay. Yeah, we will continue. But I suppose if we just keep, try to keep the questions and the answers brief. But I think we have time. Cindy, would you like to come in and answer? Thank you so very much. In Canada, citizenship and immigration is a federal jurisdiction. And so, as I indicated, the Act for Immigration and Citizenship in Canada provides that everyone born in Canada will be Canadian. We have implemented emergency rules with respect to the crisis in Ukraine and are issuing emergency visas to all refugees, including babies. With respect to those born through, via surrogates to Canadian parents, they would have, under normal circumstances, been able to bring home their baby without having to establish any genetic connection. Because the federal government does not require it. That is cross-support. But with the emergency as being recognized now. Sorry, there's feedback. I'm not sure from where it's coming. You're okay. We can't hear any feedback. Okay. So, those surrogacy arrangements would be acknowledged in the Ukraine where birth certificates would have been issued. The babies would have been brought back home. But because that's not happening now due to the emergency situation of war, our government will be recognizing those children simply by establishing some element of parentage by way of intention. When I had the privilege of being in Dublin in March, I actually was on a call with a judge here in Ontario who does our declarations of parentage to ask what she thought the courts might be able to do without legitimate surrogacy agreements established in Canada, perhaps without consents of surrogates who are in danger in the Ukraine after giving birth. So, and her advice was that people will bring the applications to courts. She and the judges in each province will be discussing this, no doubt, but that based on the best evidence available and the best interests of the child, they will make their orders. Which is to me that you don't, we may not have paperwork for the babies born in Ukraine. And when we brought the surrogates here and they've given birth, we may not have legal surrogacy agreements to establish those relationships, but the best evidence by way of affidavit will suggest that those children should belong to their intended parents. And shortly after the government opened the doors to the immigration act by naming intended parents by a surrogacy legal parents of unborn babies, only in those circumstances, they did a grand overhaul of the immigration act to look at other archaic provisions. And one was the need to establish a genetic connection by the Canadian parent when they went abroad to have a baby. And we had seen a number of what I would call scandalous situations where intended parents didn't realize that and had babies by surrogacy in other countries, India, Kenya, for example, and went through tremendous political hurdles to bring their babies home. Our government thought they should not punish, but that the children needed to be recognized as Canadians and be brought home with their parents. So they amended the immigration act a month after the first legislative change to say parentage in Canada need not be established by genetics, but by intention. And I'd like to finish answering this by bringing to the attention a number of things. One, the Honorable Madam Justice O'Hanlon read from a report that spoke to the need for genetics in various provinces of Canada and said that it was only Ontario and British Columbia where it wasn't needed. In fact, it is only two provinces now, Alberta and Nova Scotia where it is needed. Every other province has now amended legislation to say no genetic connection and the federal government has, which means those provinces, Nova Scotia and Alberta are ripe for a constitutional challenge. My colleague speaking to the committee later today and I are actually planning to work on one for Alberta. And I want to just mention because as I said, I am a mother through surrogacy. This is a direction. It's not a ruling or a judgment by the judge who declared me to be the mother of my husband's children. When I was first told that that's what our law required, I literally figuratively hit the roof of this room and said after what I persevered to become a parent, I should not be punished by needing to beg a court to make me that I deserved a medal. And for same sex couples, their struggle may be different, but not without the same advocacy, the same perseverance, the political struggle to be recognized as parents in various countries is enormous. They deserve medals, not punishment, begging courts to declare them as parents. And so in my goal to change my practice from criminal law after 30 years to become a fertility lawyer and change the law in Canada, I created a process with my favorite criminal judge, Justice Trafford, to declare my children mine. And I wish to read what he said, which will only take 30 seconds, I promise. It is also appropriate to observe on this occasion that the inherent worth and dignity of all persons is of fundamental importance in a free and democratic society like Canada. All lives, whatever the circumstances leading to their conception, are to be respected and recognized as equal before and under the law. Janelle, like her sister Etta, is to be respected and is respected as much as any other person. Their lives and all of their potential are no different than the lives of any other person. They are as important to the society we live in and treasure as Canadians as any other person. The rule of law in Canada demands such treatment of them and will facilitate the development of their potential as human beings through proceedings like those before the court today. Indeed, it has facilitated it through the many contracts entered into for the purpose of protecting the rights of everyone involved in their births. Those are the principles that exemplify Canadian values in family making. We don't have genetic connections, we don't require sexual orientation, we don't have status of marriage. All you need to be is an intended parent of 18, of course, and you will be recognized as such. Thank you. Okay, thank you very much. And Richard, I think Deputy Function had a question for you as well. Yes, thank you. And I would echo the sentiment raised by Cindy and her quote, that is a pervading principle throughout the United States when it comes to surrogacy. And to just quickly answer the direct question, we were declared the parents in a pre-birth order before the birth. And there was no uncertainty as to who the legal parents were of our children from the moment of birth, including financial responsibility and physical custody. Most of the states in the U.S. would take the same approach. However, with the handful of states that require or only allow a post birth order, in those states, the parents are granted a guardianship, which helps to bridge the gap between the time of birth and the issuance of the post birth order. And through that guardianship, they are allowed to make decisions, care for the child, take physical custody, etc. I am very grateful to my Canadian and USA colleagues, and thank you, Cindy, for the correction there. I am very interested in that, because if we dispense with the need for the genetic link, it means that the second parent, as it were, with a pre-birth order can have full rights as parent on birth. And it does away with that distinction, which when I wrote my initial paper, I really found it was extremely hard for that second parent at the time in Ireland to have to wait a good perhaps two years and apply to have their status improved. And we all know the long journey it is for people to have children. So I think that's a wonderful achievement for both most states in the U.S. and Canada. And am I to answer the question then? Yes, I'm asked what the view of my colleagues would be. Well, I'm retired since last November. I dare not speak for my fine colleagues, but I can imagine. They love regulation. If it's on the tin, their job is to implement it. So it's over to the legislators now. And I think it would be more than welcome. Particularly the worry that in the background there are these unregulated cases, who should be encouraged, not penalised, encouraged to come forward. Where children are involved in our courts, it's never been a question of sanction where possible. Unless there's a criminal offence, of course. But encouraged to come forward and have their situation regularised now. So with humanity. Yeah. So I hope that answers your question. Thanks. Thank you. Thanks very much, Chair. I just want to firstly acknowledge all three women. And I think that you are just amazing. And thank you so much for sharing your stories and for being here with us, whether that's virtually or in the room. I just have kind of two questions for each person. I also do actually just want to separately say as well to acknowledge Ivana and the situation that you've come from in your home country in the Ukraine. And I know that that has been difficult and stressful. And I just want to acknowledge that your presence here as well and your family. And I know that that has been, I can't even imagine, I can't even think of words, to be honest. But just I wanted to acknowledge that. Is there anything that you think that you would like to see changed if you were in the surrogacy journey again? Is there any additional supports that you think should be there? I'm asking that so that we can see what we might add or how we might kind of do our system, let's say. And then in relation to the birth cert, do you believe that the birth cert should solely be the intended parents or do you believe that there should be? Because some people would have mixed views on the birth cert. I personally believe it should be the intended parents. But it's just interesting to hear people's views. I think it's important for children to be able to get access to their information and know about their identity and their journey and everything. And I think that's important. But just in relation to the birth cert, just your views on that. They're my two questions, Chair. Thank you. Okay, thank you very much. Will we go to Alan first? Yeah, you can just go. Yeah. In terms, I cannot speak to what a surrogate would feel like in terms of making her journey differently. And so I would defer to the really incredible women that we've heard from this morning. With respect to the birth certificate, I would turn that around and there is nothing secret about a surrogacy journey. And perhaps it could be mandated that children are entitled to know whose womb they grew in. Think about the intended mother who is so desperately afraid that the surrogate is going to have a link with her child, who's terrified that the surrogate is perhaps going to attempt to keep the child, which does not happen in practice in Canada. To say that by virtue of having gestated a child, you're entitled to be named a parent on the birth certificate, I think it's very demeaning to the intended parents. And there are other ways of managing it. Because ultimately in Canada, what I do is when a baby is born on Saturday, the baby never appears on the birth certificate in Alberta, but I have a court order by Monday morning that says that the surrogate is not a legal parent. And so there's simply no point in having her on the birth certificate. Thank you. And Jennifer, if you'd like to answer. So, remind me of the first question. Just in terms of support, is there anything different that you think that they could do? Or maybe there isn't, but just... Yeah, from a professional perspective, I feel like the surrogacy agencies could be better regulated. Okay. There really isn't that much regulation in surrogacy agencies and what is supposed to happen. And so I've seen in different agencies work differently and support the surrogate differently. So I personally chose my agency because of how well they support surrogates, but I know in my experience that that isn't necessarily the case for all agencies. So better regulation for the agency perspective. As far as me being put on a birth certificate, if I was going to be told that I had to be the parent of the child that I was carrying, I probably wouldn't have been a surrogate. Okay. I have no desire to have any other children. Yeah. So for me, the idea of being listed on a birth certificate is crazy to me. I just, like, that would make me not do it because I don't want to be responsible for another child. If, again, if I wanted to be responsible for another child, I would have had another child. So, thanks. Okay. Thank you. And Ivana, would you like to answer? Yes. Yes. Yes. As the same question, it's a clear idea. I don't understand it. I don't understand. It's my own children. And I feel free of responsibility. Because I have my children and I'm happy. I don't want to know my family. And I have the same family. I have the same family. I have the same family, I have the same family, I have the same family, I have the same family, I have the same family. I would like to ask my name to be in the testimony of birth. So, as a whole family, there is a father and a mother who should be there. The third person there should not be. I'll give you an example. Is the donor of blood in the documents? Please tell me. No. Please tell me. What is my mission in the testimony? It is not to be. The family must be complete. Father, mother and children. To change the law, to be a family. And to be happy. Every woman has the right to be happy. Happy family, happy woman. When she has her own children. If she can't have a child from medical point of view, we are willing to help. To help, not to be in the testimony. Or to be concerned about us. If the family wants to tell their child about how she was in the world. If the time comes, she will tell. It is a matter of her family. I think it is not our matter. Thank you. Thank you. Thank you. I suppose for people listening, Yvanna was very determined that there should be no recognition on the birth cert. Thank you, thank you. Thank you. We will now move to the hospital. Thank you. Thank you for taking the work. Thank you.