Ms Tracy O'Keeffe:

I thank the Cathaoirleach and the members of the committee for inviting the Department of Justice to discuss issues relating to international surrogacy. I am a principal officer in the civil justice legislation function of the Department of Justice. I am joined by Mr. Andrew Munro, assistant secretary, who has responsibility for civil justice policy and legislation.

International surrogacy arrangements raise complex and important questions of rights and ethics concerning areas of law that intersect across the remits of several Government Departments. There has been substantial work and engagement on issues relating to international surrogacy between the relevant Ministers and Departments. The issues paper on international surrogacy which has been provided for the assistance of the committee sets out the current legal position on international surrogacy, the issues and key challenges that arise in this area and possible options for dealing with the issues arising. The issues paper was drafted jointly by the Departments of Justice, Health, and Children, Equality, Disability, Integration and Youth.

The issues paper outlines the current position in Irish law relating to the legal parentage and guardianship of children born as a result of surrogacy arrangements. In Irish law, legal motherhood is based on birth rather than genetics. The birth mother of a child has automatic rights of parenthood and guardianship over the child. Under Irish law, the genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child under the Status of Children Act 1987. If the declaration of parentage is granted, the father may apply for guardianship under section 6A of the Guardianship of Infants Act 1964.

An intending mother of a child born through surrogacy, while not the legal mother of the child under Irish law, may apply to a court to be appointed a guardian of the child under section 6C of the Guardianship of Infants Act 1964. The legal position is the same for a male intending parent who is not the genetic father of the child.

Article 42A of the Constitution is relevant to the rights of children born as a result of surrogacy arrangements. The European Court of Human Rights has considered cases relating to international surrogacy arrangements in the context of a child’s right to respect for his or her private life under Article 8 of the European Convention on Human Rights.

As regards international initiatives, an expert group set up by the Hague Conference on Private International Law, which is examining private international law issues relating to the legal parentage of children and international surrogacy arrangements, is expected to submit its final report in 2023. It is expected that the European Commission will propose a legislative initiative later this year on recognition of parenthood within the European Union.

In February 2021, a group of experts in international law and human rights adopted the Verona principles for the protection of the rights of the child born through surrogacy. These principles were drafted to assist states and other stakeholders and to provide guidance on legislative, policy and practical reforms on the upholding of the rights of children born through surrogacy.

To return to the Irish context, the report of the special rapporteur on child protection, A Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law, was published in early 2021. The special rapporteur made a number of recommendations relating to international surrogacy and the position of intending parents of children who have already been born through surrogacy arrangements. These recommendations, which have been considered and discussed by the relevant Ministers and Departments, present some challenges and difficulties, which are described in the issues paper. The issues paper sets out some options that the committee may wish to consider to address issues relating to international surrogacy. The list of options is not exhaustive and is not intended to limit the committee's consideration of the issues.

The issues paper describes the key issues and challenges relating to international surrogacy. In addressing those issues, care must be taken to ensure that consideration is given to the rights, interests and welfare of all persons involved in international surrogacy arrangements - children born through surrogacy, surrogate mothers and intending parents. These include, in particular, the need to ensure protection of the genetic identity rights of children born through international surrogacy and the need to ensure proper safeguards for surrogate mothers. I am happy to answer any questions that committee members may have.

Mr. Karl Duff:

The Department of Children, Equality, Disability, Integration and Youth is grateful for the opportunity to attend this special committee session on international surrogacy and to speak to its relevant policy areas in this regard. The Department also welcomes the wider debate and discussion on international and commercial surrogacy. I am a principal officer in the Department. I am joined by my colleague, Mr. Cormac Grundy, assistant principal, and remotely by assistant secretary, Ms Laura McGarrigle.

The area of surrogacy continues to be a complex legal and policy area, both in Ireland and internationally. Surrogacy and assisted human reproduction transects a number of policy remits across Departments and State agencies, as is evident by the attendance of three Departments at this meeting. I believe all parties would agree that surrogacy gives rise to important ethical questions and that these questions are heightened when we specifically consider the nature of international commercial surrogacy. I would also suggest that Ireland is not alone in this and that many other countries are considering how or if to legislate in the area of international surrogacy.

The focus of this Department, and our role here today, is on ensuring the rights of the child are central to any discussions. We are keen to ensure that as the potential for policy and legislative development is discussed, the rights of the child and the child’s best interests are paramount. Much of this consideration of the child’s rights and best interests is informed by looking at Ireland’s history and how, in the past, the rights of the child were often not to the fore or were absent from legislation and policy development. Members will be all too familiar with the reports which highlight failures to vindicate the rights of the child in Irish history. As a Department that is at the forefront of legislating to address the State’s failing in the past, it is incumbent on us that we use the learnings from the past to inform our thinking on future policy development.

We recognise that Ireland today is a society where non-traditional family formations, including through surrogacy, exist and that the image of the family unit is one that is evolving. The embracing of diversity has made our country better and a more inclusive place in which to live and grow.

The Department has engaged on the matter of surrogacy with members of Equality for Children and Irish Families through Surrogacy. We could not but be moved by their accounts of becoming parents through surrogacy. We imagine the committee will also have an opportunity to hear from such groups. Nonetheless, international commercial surrogacy does raise concerns about the commodification of children, exploitation of women in poorer countries, the risk of child trafficking and the child’s right to know his or her identity. In this sense, we would encourage all parties to consider not only their rights and best interests as children today, but also how they will feel when they grow up and, as adults, consider the circumstances of their birth.

The Department’s work on developing and progressing the Birth Information and Tracing Bill means that the right of a child to know his or her identity and understand the origin of his or her birth is keenly appreciated.

In considering any measures in the area of international commercial surrogacy, the Department highlights the following points as especially important. Measures should respect the child’s rights to know his or her origins, including about his or her surrogate mother and any egg or sperm donor. In this regard, all material relating to a child’s birth should be preserved for the child. Measures should also ensure a genetic link between the child and at least one intending parent. Allowing for recognition of parentage where there is no genetic link between the child and either parent would raise serious concerns about child trafficking and undermine the protections for children built into the adoption process. Measures should ensure that the rights and welfare of the surrogate mother are protected and respected. This is essential, not only in the context of her rights but also when the child grows up and looks back on his or her birth, he or she must be satisfied that their birth mother was protected from exploitation.

The Department welcomes the debate around international commercial surrogacy and the opportunity to discuss the complexities involved. We are happy to discuss these further, with a focus on the policy areas relevant to our Department. I again thank the committee for the opportunity to present this opening statement.

Mr. Muiris O'Connor:

I thank the Cathaoirleach and members of the committee for the invitation to join the discussion on this issue. As the Cathaoirleach has said, I am joined by Mr. Niall Redmond, principal officer, as well as remotely by Mr. Colm McGennis, assistant principal, from the bioethics unit at the Department of Health. I will provide a brief overview of the Government’s proposals to regulate surrogacy as undertaken in this country.

As the committee will be aware, the Health (Assisted Human Reproduction) Bill 2022, commonly referred to as the AHR Bill, passed Second Stage in the Dáil on 23 March and has been referred to the Select Oireachtas Committee on Health. This comprehensive and long-awaited legislation will for the first time encompass the regulation of a wide range of practices undertaken in this jurisdiction within this complex and fast-moving area of healthcare.

Part 7 of the Bill details the specific conditions under which surrogacy in Ireland, that is, domestic surrogacy, will be permitted. The relevant provisions were drafted with the aim of providing a robust framework with all required safeguards in place for dealing with domestic surrogacy applications. In considerations regarding the possibility of legislating for international surrogacy, the Department of Health is primarily concerned to ensure that any proposals that may emerge do not undermine the principles of the policy in respect of domestic surrogacy, as reflected in the Bill, or create a conflicting policy landscape.

The briefing document provided to the committee sets out the circumstances under which a domestic surrogacy agreement may be approved. The issue of payments for surrogacy, other than the reasonable expenses of a surrogate mother, is of particular relevance and significance in the context of international surrogacy. It is generally understood that most foreign surrogacies involve commercial payments beyond reasonable costs. The domestic prohibition on commercial surrogacy is predominately based on concerns and ethical considerations relating to the welfare and commodification of the children involved, as well as the potential risks of coercion and exploitation of financially vulnerable women to act as surrogates.

Government policy to prohibit commercial surrogacy is consistent with similar policies internationally. Most jurisdictions that have legislated for surrogacy have prohibited commercial surrogacy, except a very small number such as Ukraine, a number of American states, including California, Illinois and Idaho, and Russia. This is a significant factor in deliberations regarding any proposals for policy and legislative intervention in respect of international surrogacy.

It is important that the overarching policy and legislative framework is coherent and avoids confusion. There are deep considerations that need to be explored in respect of the public policy position and seeking alignment across domestic and international surrogacy. The focus of AHR Bill is on the regulation of a wide range of practices undertaken in this jurisdiction exclusively and especially those carried out by private fertility clinics operating here. The issues which arise from Irish people engaging in cross-border surrogacy primarily relate to parentage, citizenship and, potentially, adoption.

Overall, the Department of Health is anxious to ensure that the AHR Bill progresses as quickly as possible and without undue delay. The Bill provides a regulatory framework for assisted human reproduction in Ireland across various treatment types, including IVF, and provides an ethical framework for research on new reproductive technologies. It is estimated that in excess of 10,000 IVF cycles and other advanced assisted human reproduction treatments are undertaken in this country every year. In comparison, it is understood that the number of international surrogacy arrangements involving Irish residents annually is, in relative terms, limited. This is not to diminish the importance placed on surrogacy arrangements by intending parents, who are dealing with a range of difficult issues and emotions that arise in the context of infertility problems.

Delay in progressing the AHR Bill will directly impact on the patients and the prospective parents involved in the tens of thousands of time-sensitive procedures carried out within this jurisdiction yearly. It would also impact on service providers who must plan for and be ready for the new regulatory regime. This legislation will increase protections for service users, standardise services and ensure public confidence in those services.

It is also important to reflect that further delay in progressing the AHR Bill could have adverse knock-on effects on the timelines for the establishment of the assisted human reproduction regulatory authority, the development of the necessary secondary legislation and the Department’s plan to introduce the provision of advanced AHR treatment through the public health system, in conjunction with the HSE. Progress on these critical items, to give full effect to the regulatory framework can only be made once the Bill is passed.

The absence of a regulatory framework for this innovative and sometimes controversial sphere of healthcare in this country clearly makes Ireland an outlier internationally. However, the Department of Health is not in agreement with much of the commentary on the topic that our country should similarly be considered a laggard on the issue of international surrogacy. For instance, the Department is not aware of any EU member state which has legislated specifically for its own citizens engaging in surrogacy in another jurisdiction. Rather, the norm appears to be that existing family law is utilised and adapted to deal with specific cases, similar to what this State has done to date in this area.

Notwithstanding that, the matters which arise in the context of international surrogacy are largely not within the direct policy scope of the Department of Health, the Minister and the Department are eager to support the consideration of these complex issues where possible. We are interested in hearing the views of the committee and answering any questions that arise.

Sharon Keogan (Independent)
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I thank Ms O'Keeffe, Mr. Duff and Professor O'Mahony. I find this a very emotive subject, to be quite honest. I have done a little bit of investigating into this and significant research over the past couple of months. Surrogacy is prohibited in many of our European countries. It is legal in the United Kingdom and Greece, as long as it is done on a non-commercial basis. Ukraine, along with Russia, is one of the few countries where commercial surrogacy is legal.

The destination seems to be Ukraine. This is, obviously, causing me some trouble, especially with the war ongoing. The estimated global market in Ukraine is €5 billion. Over the past five years, more than 4,000 children were born via surrogacy in Ukraine, and 19% of them have foreign parents. How can we possibly ban it here and give it the green light in Ukraine? This sets a complete double standard. It is okay to exploit Ukrainian women, but not Irish women.

From Professor O'Mahony's statement, I get that it is happening anyway and that we need to ensure that parents and children, produced by surrogacy, have a proper legal framework. That is very defeatist. Has the Department looked at countries such as Ukraine to agree to allow a couple of countries where commercial surrogacy is banned-----

Sharon Keogan (Independent)
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The questions are coming.

Sharon Keogan (Independent)
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I have his statement here.

Sharon Keogan (Independent)
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I beg your pardon. I must say that I find what I see as a challenge to traditional parenthood to be very exploitative and uncomfortable. The children are the victims here. We do not want them to be victimised or called the ghost children and not to be recognised here in this State. That is definitely an issue. What matters is the child. The child is very much wanted and respected as an individual, but that respect must also be shown to the surrogate as well.

I thank the witnesses for their statements. I have great difficulty with the payments involved and I have grave concerns about the commercialisation of children and babies.

Sharon Keogan (Independent)
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Yes, they were directed to Mr. O'Connor.

Mr. Muiris O'Connor:

All I can say is that the concerns conveyed by the Senator are the concerns that very much informed our proposals on legislation for surrogacy in Ireland. The discomfort the Senator has expressed with surrogacy practices abroad is part of the real complexity of the issue. The Oireachtas does not have jurisdiction beyond our own boundaries. It is a really complicated matter. The concerns expressed summarise very well the considerations that are incorporated into the Health (Assisted Human Reproduction) Bill 2022.

Sharon Keogan (Independent)
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A paragraph from Mr. Duff's opening statement is not included in the copy of the statement that the committee received. I refer to the part on future policy development and learning from our past. I ask Mr. Duff to repeat that paragraph.

Sharon Keogan (Independent)
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I ask Mr. Duff to repeat that paragraph again. It follows the paragraph that finishes: "As a Department that is at the forefront on legislating to address the State’s failing in the past, it is incumbent on us that we use the learnings from the past to inform our thinking on future policy development." The next paragraph is not included in the statement that the committee received.

Mr. Karl Duff:

No. The next paragraph reads as follows: "We recognise that Ireland today is a society where non-traditional family formations, including through surrogacy, exist and that the image of the family unit is one that is evolving."

Sharon Keogan (Independent)
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I thought I heard Mr. Duff say something else in relation to people's concerns that was not in the statement that he read out. That is fine. I obviously misheard him.

Emer Higgins (Dublin Mid West, Fine Gael)
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I am delighted to be here to discuss such an important topic. It is really progressive that we have established this committee, and I am delighted to take on the mantle of Vice Chairman. There are so many families throughout the country, including in my constituency, that have become families through surrogacy. I do not agree with some of the phrases used by the previous speaker. I do not believe that these families are exploitative and I do not believe that their children are victims. I believe that we need to get to a point where all parties involved in the surrogacy process are treated equally and fairly, and that there are legal rights and recognition for the children and, in particular, their mothers. I say "their mothers" because as the issues paper that we were given ahead of today's meeting clearly states, "The intending mother of a child born through surrogacy, not being the birth mother of that child, is not entitled to apply for a declaration of parentage" under the Status of Children Act 1987. That holds, even if it is the intending mother's egg that is fertilised during the process. As so many mothers know, guardianship cannot be applied for for two years. That creates all sorts of issues in custody disputes, inheritance complications and situations where mothers who are caring for their children are not even allowed to sign permission slips for them. That is why we are here. That is what we need to resolve.

It was really interesting to hear from our three speakers today. Ms O'Keeffe clearly outlined the current situation and the legal parameters. Mr. Duff explained how we all have the children's rights at heart. I think every one of us does. From Mr. O'Connor's perspective, and I would like to put my question to him, he stated that no EU member state has legislated for international surrogacy and that instead, some have adapted existing family law to deal with the issue. We are all here today because we have not been able to adapt existing family law to deal with it. Does Mr. O'Connor think this is something we can do? Does he think we need stand-alone legislation on it or can the issues be ironed out as part of the Health (Assisted Human Reproduction) Bill 2022?

Mr. Muiris O'Connor:

I will refer to my colleague, Mr. Redmond, who can respond.

Mr. Niall Redmond:

I thank the Deputy for her question, which probably reflects the complexities involved. There may be a number of different vehicles, if we are looking for policy solutions, legislative solutions or both, in this area. I know that some of the potential options were described towards the end of the issues paper. There are a number of ways of looking at it, and a number of ways of trying to find the right balance in terms of the various rights involved. None of them represent a very simple or easy solution, as we know. The main thing to be doing in this space is to be looking at those options, to consider them in more detail and to consider the views from the range of stakeholders involved that have an interest in this area. In terms of the Health (Assisted Human Reproduction) Bill, as outlined already, we have set proposals on legislative provisions around the treatment of domestic surrogacy and a whole range of criteria, conditions and processes around that. Obviously, key in some of those, as set out in our opening statement, are issues around the prohibition of commercial surrogacy for the reasons outlined. One of the things we are particularly concerned about in the Department is that whatever the intervention may be in terms of how we treat international surrogacy and find solutions in that space, they are not in conflict with our domestic regime.

Emer Higgins (Dublin Mid West, Fine Gael)
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I agree with Mr. Redmond. I suppose that is what we are all here to do. I am conscious that we are tight on time because we are doing two sessions, so I am happy for the Chair to continue with the meeting, to ensure that all members get their say.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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It is great that we are finally having our first meeting. Over the next number of months when we have all of our public meetings, it will be very helpful for everybody to listen in to all the various groups. Hopefully, we will dispel some of the myths that are out there in relation to surrogacy. As Deputy Higgins has said, there are many very genuine families going through the process. We are short on time and I know what it is like to be Chair, so I will be brief.

I want to ask the representatives of the Department of Justice about the difficulties it has claimed are presented by Professor O'Mahony's recommendations. I am aware that Ms O'Keeffe stated that the difficulties are described in the issues paper, but are there two or three specific difficulties that the Department sees with his recommendations? As Professor O'Mahony will be attending the second session, it would be helpful to know that. I have a question for the representatives of the Department of Children, Equality, Disability, Integration and Youth on children who have already been born and are living here. Do the witnesses have any thoughts or opinions on whether there should be separate legislation or an instrument to deal with children who have already been born? I am very conscious of families that face potential difficulties in terms of a parent being sick or very real problems in the here and now and that perhaps cannot wait. I ask for the witnesses' thoughts in relation to that. I also want to ask, more generally, if any of the Departments have looked at other models or similar practices. There may not be time to get to that. Given that they were coming to this meeting, I am sure the witnesses looked at the position in other jurisdictions.

Where do they think we could take some work or examples from?

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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The Department of Justice and the Department of Children, Equality, Disability, Integration and Youth and then, if there is time, the Department of Health. If not, it is fine.

Ms Tracy O'Keeffe:

As for the challenges that were identified in respect of some of the special rapporteur's recommendations, one related to the recommendation that provision be made for a court application process to take place before a child born through international surrogacy outside of the State be brought back to Ireland. We saw that as creating quite a few practical and logistical difficulties in respect of the arranging of remote hearings. The situation in Ukraine highlights the difficulties that could be involved in trying to arrange a remote court hearing in a foreign jurisdiction. There would also be issues with the timing of such a hearing because the family's visa for whatever country they are in could be running out. They would be running up accommodation and medical care costs while abroad, so prolonging their stay in the country may present practical difficulties. There would be the issues with remote hearings and making sure that whatever reports and so on are needed are before the courts. Trying to procure those at a distance could create practical difficulties.

The other main issue we saw related to the proposal for the process, which would involve a court application only after the birth of the child. That was seen as being inconsistent with what is proposed in the AHR Bill in respect of domestic surrogacy, whereby there would be two stages to the process: an approval process at the outset involving the AHR regulatory authority and then, at the other end, when the child is born, the parental order process that goes to the court. We thought there would be an inconsistency there in that a two-stage process would be required for domestic surrogacy but only one stage would be required for international surrogacy.

Those were two of the main practical issues we saw.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Could the Department of Children, Equality, Disability, Integration and Youth come in briefly on existing children in families formed through surrogacy?

Mr. Karl Duff:

The Deputy makes an important point about existing children in family formation through surrogacy. With respect, I think that is part of the work of the committee. Going forward, I think any work or policy development or measures that are recommended in respect of international surrogacy should not be focused only on future arrangements and the intending parents; equal time and effort should be given to looking at the existing arrangements. I think the concerns of both, intending parents and those who have already formed a family through surrogacy, are very similar in respect of parentage. It is for the committee to determine the direction and the recommendations in that regard. I note that the committee will meet with the special rapporteur. In his report and in recent commentary on this matter, he has spoken about existing children.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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We can come back to it if there is time at the end.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Yes.

Lynn Ruane (Independent)
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I thank all the witnesses for their contributions. This issue definitely involves a steep learning curve for me. I will ask direct questions and I would appreciate answers that are as concise as possible.

The issues paper refers to appropriate safeguards. I am thinking about the appropriate safeguards in respect of one of the ethical concerns being raised, namely, commercialisation. How do those two things intersect? Is there an appropriate standard of safeguard that reduces the impact of the ethical issue of commercialisation? What I am asking is what the appropriate safeguards are. If appropriate safeguards are in place in respect of the surrogate mother, does that balance out any other concerns about commercialisation? That is my first question. I hope it is clear. It is hard to know to whom to direct it, whether the Department of Health or the Department of Justice. I am not sure.

Mr. Andrew Munro:

I am happy to point up some of the issues arising from the Senator's contribution. We have seen some very difficult examples in the past whereby, to be fair, intending parents were trying to do the right thing. Many people got exploited by bad actors. For example, the egg that was supplied by the purported donor was not that egg; the child given to the intending parents was not conceived from the sperm of the intending father; the surrogate mother was spirited away over a border immediately after the birth; or the local authority provided a birth certificate that named the intending father as the father despite the child having none of his genetic material. That is no reflection on the intending parents, but there were many bad actors and it can be seen how the surrogate mother, the child and the intending parents were exploited because of weak public administration in a country. There are therefore a range of things that can go-----

Lynn Ruane (Independent)
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Regarding regulation on behalf of Ireland on an international basis, does Mr. Munro think it would be possible to differentiate clearly between those who are being trafficked or exploited and those in genuine surrogacy arrangements, whereby those safeguards are in place? Does he think regulation will help to determine which is which?

Mr. Andrew Munro:

It is excessively challenging, given the countries where commercial surrogacy is allowed and their regulatory systems. They are not European Union states with strong rule-of-law systems where it can be guaranteed that certain things are happening. We would have great difficulty from this remove in certifying that a country in Asia, Africa or wherever else was applying standards. One would have to go out and carry out inspections and have an equivalence regime. There is not really a commercial surrogacy regime anywhere in Europe that provides this type of regulation. I suppose that informs the Government's policy choice in respect of commercial surrogacy domestically. I am not saying it cannot be done; I am just saying there are challenges there. I think the issues paper raises them in order that the committee can explore them and identify the risks and then try to identify how to get assurance that the standards we would like to see applied in country X are actually being applied and how we can ensure that the intending parents, the child and the surrogate mother are not being exploited, building systems around that. It is a bit like building health regulation here at home. I refer to all the standards we have had to raise here and in child protection. Looking at the architecture we have developed over the decades around the entirety of health and children regulation, those are the kinds of challenges being explored here.

Lynn Ruane (Independent)
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My next question may be for the Department of Children, Equality, Disability, Integration and Youth. When there is international surrogacy and a child comes to Ireland with his or her intended parents, what other rights of the child are being violated by not granting parentage on arrival in Ireland? How do we prioritise those rights as to what access the child has to a mother and a father, including the right to family life and all those other rights? How do we prioritise those rights when we do not have regulation in respect of international surrogacy?

Mr. Karl Duff:

I can speak to children's rights, which are the focus of my Department. It might be for the Department of Justice to speak more specifically to parentage. Our primary concern is very much the child's identity, understanding his or her origin, and the current work we are doing on birth information and tracing. We are very keen that where children are born through surrogacy, as they grow up and become adults they understand the nature and origin of their birth and can access their birth information, which we are working so hard on for people who were adopted, boarded out or the subject of an illegal birth registration here in Ireland. We are working very hard on legislation on that. As for children's rights, we would like to see something similar for the child born through surrogacy.

Lynn Ruane (Independent)
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I thank Mr. Duff.

Erin McGreehan (Fianna Fail)
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I thank all the witnesses very much. It is a great day to be starting on this important topic, to be getting stuck in and to be making sure we have a good report at the end of our three months of deliberation. I am reading into this topic and I am learning every day about it.

I will start with the contribution of Ms O'Keeffe, who mentioned the Verona principles and the expert group of the Hague Conference. As the witnesses from the Department of Health rightly said, we can only legislate on a national level and we can only put in safeguards at a national level and ensure they are properly implemented. We should be looking at the issue in a European context. The European Commission has proposed to draw up a legislative initiative later this year. Has the Department of Justice had an input into the European Commission? What soundings has the Department taken on the workings at a European level? We all want to make sure every single actor, for the want of a better word, within these incredible relationships is protected. When we think about what is happening here, someone is giving the opportunity of parenting their child. It is a miracle in so many ways and we want to make sure we look after every single person along the way and that they are fulfilled, including the respective parents, the surrogate mother and the child that is lovingly created at the end of it. What do the witnesses hear from a European angle in that regard? It is a positive way to make sure we have regulation and safeguards at an international level. I will leave it at that because there is a lot in those questions and I can come in again at the end if there is time.

Mr. Andrew Munro:

There have been a couple of high-level discussions at EU level on the basis of very high-level discussion papers around the general attitudes and whether member states want this explored, but we do not yet have anything in the way of a concrete proposal from the Commission. Ms O'Keeffe might be able to add to that.

Ms Tracy O'Keeffe:

Yes. The preparatory work is ongoing. The Commission undertook an extensive public consultation process last year. It is expected it will publish the proposed initiative towards the end of the year. The third quarter was mentioned, so it would be some time in the autumn. Because it would be expected to be a measure in the family law area, it is one on which unanimity will be required. There will be quite a road to go in terms of the negotiations between member states on it.

In broad terms, what is envisaged is a proposal that where parenthood has been established in one member state, it would be recognised in the others, with the free movement of citizens in mind, and the reality that family life can now have an international dimension with people moving from state to state.

Ms Tracy O'Keeffe:

It will depend on how the negotiations proceed, but it is not something that will be wrapped up in a couple of months.

Lorraine Clifford-Lee (Fianna Fail)
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I wish the Cathaoirleach and the new Leas-Chathaoirleach the very best of luck as we undertake this very important work in the coming months. I listened very carefully to the contributions, which were excellent and very informative, and a couple of questions arise.

Mr. O'Connor said no EU state has legislated for international surrogacy. Is he aware of any state that is perhaps thinking about it or is in discussions about it like we are currently?

Mr. Muiris O'Connor:

I will bring in Mr. McGennis to respond to that.

Mr. Colm McGennis:

I do not think we are. The UK has a policy in this area, but at an EU level, we are not aware of any country that is proposing to bring in a specific regulation. They utilise their existing family law to resolve it, seemingly in one of two ways. One is by adoption or step-adoption and the other is by recognition of a birth certificate from the country where the surrogacy took place. Basically, we would have somebody who went to Ukraine and the birth certificate would list the mother and father as the intending parents and they would accept that at face value. Every country is grappling with the same issues we are. They may have not even allowed domestic surrogacy but they have certainly prohibited commercial surrogacy in their home country and then they must try to reconcile that. From what we know, it has not proved to be possible so far.

Lorraine Clifford-Lee (Fianna Fail)
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As Mr. O'Connor said in his contribution, other countries have utilised their existing family law arrangements to work around the situation. We know our current family law is not at all suitable or acceptable for families created through surrogacy arrangements. Is Mr. McGennis aware of any state that has successfully provided safeguards for the interests of the child and the interests of the intending parents through their own domestic family law arrangements?

Mr. Colm McGennis:

International surrogacy for citizens who have gone abroad seems to be done on a case-by-case basis. It seems adoption is the solution that has been chosen. Perhaps the Department of Justice has something to add to that.

Lorraine Clifford-Lee (Fianna Fail)
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From my own knowledge and from what we have heard so far, many parents find the difficulty in the lacuna when they come back to Ireland with their child, as there are no rights attaching to the mother and there is a two-year plus waiting period. Are there better ways we can approach that in a more timely fashion so that a child and a mother are not left without rights for two or three years? Could we address the situation in a speedier fashion within the family law system?

Mr. Andrew Munro:

The challenge there is that the understanding in Irish law at the moment is about motherhood being linked to the birth mother. The challenge is to bridge the gap between the parentage that is assigned to the birth mother and to transfer it to the intending mother, and to ensure the rights and interests of the birth mother and child are properly taken into account. Ms O'Keeffe can say more about the basis for the two-year wait that exists at present in the guardianship provision. It predates considerations around surrogacy, as such, and is more about understanding that there is a subsisting relationship. Ms O'Keeffe can clarify further the state of the law as it is currently on guardianship.

Ms Tracy O'Keeffe:

Section 6C of the Guardianship of Infants Act was introduced by the Children and Family Relationships Act 2015. Its main purpose was to deal with the reality of family life as it now is for many Irish families, where we have so many blended families and new relationships being formed. Its main purpose was to deal with situations where people who had children in previous relationships came together and were cohabiting or had got married or civil partnered and to deal with the relationships between the adults in those families and the children.

It was considered at the time, in view of those kinds of circumstances, that a two-year period would be appropriate. In fairness, the situation of a child who is born through surrogacy is something different. The possibility of looking at reducing that waiting period in a surrogacy or a donor-assisted human reproduction situation is one of the options mentioned in the issues paper as a possibility that could be examined.

Mr. Andrew Munro:

It is something we intend to look at in light of the committee’s report. That is why it is so important for us. We are delighted the committee has been established to examine all of these challenges. That will inform our further development in policy around guardianship.

Mary Seery Kearney (Fine Gael)
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I thank the Chair and apologise that the bells for the Seanad are ringing in the background. I thank the witnesses for their statements and for the options paper, although there are elements of it that are disputed by various representative bodies of stakeholders in this area.

First, all three of the papers refer to commercial surrogacy. It is important to note it is almost like a foregone conclusion that there is a determination that we as a nation will legislate for commercial surrogacy. Yet, I do not think any of the advocacy groups have stepped forward and asked for that. What all of the advocacy groups have asked for is that there be a pathway to parenthood for both parents where is a child is born via international surrogacy and that within that, there are safeguards for the identity and rights of the child first and foremost, they understand their gestational and genetic origins and they have full rights to that information.

Second, there are the safeguards to ensure the surrogate mother has adequate legal consent, advice and support.

Third, the intended parents are also vulnerable parties in this. My charge would be that the failure to put in place a provision, a mechanism and a framework has left intended parents in a vulnerable situation where they too have been exploited. Though they are true actors, they are left open to being exploited by bad actors. If we had a framework in place, if we had an advisory body and if we had the authority that is sought to be established under the assisted human reproduction, AHR, legislation, then we could fund the body underneath that. It could advise anyone who was planning to travel for international surrogacy as to what countries not to engage in, as well as as to what clinics not to engage in. We could have a collective place where all of the information of the past would be made available to those who are intending parents. Therefore, there is an erroneous notion and assumption across all three of the opening statements that there is a drive on the part of parents who need to avail of surrogacy to have commercial surrogacy legislated for. Nobody has asked for that. What we have asked for is a pathway to parentage.

On that point, can I ask the representatives of the Department of Health what is their understanding as to why this committee is a creature of three Departments? The issues paper was created by three Departments. What is the purpose of this committee being time-limited to 12 weeks? What will happen to our report? Why are we in a 12-week process? That question is to all three Departments, but principally to the Department of Health.

Mr. Muiris O'Connor:

The 12-week process was determined by the Oireachtas. I think it was announced in January. The urgency, as presented by the 12-week timeframe, partly related the progress of the Health (Assisted Human Reproduction) Bill. That is my understanding of the urgency and the prospect-----

Mary Seery Kearney (Fine Gael)
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Okay, I take that as Mr. O'Connor's view. That is our understanding also. It is my understanding from speaking with different Departments. Yet, in his statement, he talks about the urgency of the AHR legislation. This would appear to suggest that this committee somehow is going to delay that. Is that Mr. O'Connor's understanding of the situation?

Mr. Muiris O'Connor:

We are concerned not to incur any further delays in the progress of the AHR legislation for the reasons set out in the opening statement. We are open to timely conclusions from the committee. They would have to be specific recommendations that would be accepted by the Government and then adopted on Committee Stage. We were comfortable at the point of announcement around the three-month period, although I understand that today is regarded as day one and that pushes us very close to the summer recess. Our firm intention was to have Committee Stage concluded in advance of the summer recess------

Mary Seery Kearney (Fine Gael)
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The AHR legislation, and I apologise for cutting across Mr. O'Connor but I am mindful of time, went to pre-legislative scrutiny in 2017. The recommendations of Conor O’Mahony came out early last year. Yet, none of those recommendations have made it into the AHR legislation. Had some of those been included, there should have been no reason for the delay.

Mr. Muiris O'Connor:

We have accommodated a certain number of those recommendations. We can go to that in detail, should the Senator so wish. However, a large number of the recommendations related to international surrogacy. We, along with other EU member states, have struggled to determine how to provide for international surrogacy in domestic legislation relating to domestic surrogacy.

Mr. Niall Redmond:

I might also step in here as well. The other point to make is that the AHR Bill has been in development for a long period of time. It was never intended that the Bill would address international surrogacy in terms of legislative provisions. However, if the sequencing of events and proposals coming forward were to line up, the Bill could be used as a vehicle for whatever proposals may be brought forward in a legislative capacity. However, the initial intent of the AHR Bill was not to address the international surrogacy piece. Therefore, in the context of the special rapporteur’s report, as well as in the context of some of the other recommendations that were specific to domestic surrogacy and other aspects of AHR, all of those have been considered. A number of those recommendations have been taken on board in the time between the publication of the general scheme of the Bill back in 2017 and the final version of the Bill that was published this year.

Mary Seery Kearney (Fine Gael)
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Nothing new has happened in the last three months that makes the AHR legislation suddenly more urgent whereby it must proceed without the recommendations of this committee.

Mr. Niall Redmond:

In an overall sense, the AHR Bill deals with the issue of domestic surrogacy but it also deals with a range of other issues in relation to AHR. As mentioned in the opening statement, it starts to regulate an area that has not been regulated and for which regulation has been called for quite a long time. It also is important to reflect that the enactment or the passing of that Bill does not automatically introduce that regulatory regime from day one. A huge number of requirements are to be put in place post the enactment of the Bill, including the establishment of a new regulatory authority, a substantial amount of secondary legislation and a number of aspects relating to the operation and function of that authority. Therefore, the longer into the future that the Bill becomes activated, the longer into the future again that some of the operationalisation of that can take place. We therefore are concerned that it could be a significant period before the operation and function of the regulatory regime, the licensing, the authorisation processes and the establishment of the regulatory authority itself actually would be realised.

Mary Seery Kearney (Fine Gael)
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It would be important that this regulatory authority also includes international surrogacy elements and that it provides for it, in order that there can be protections for all three entities, namely, the child, principally, the surrogate mother and any intending parents. This would be so that we have that central authority.

I imagine that I am out of time.

Mr. Muiris O'Connor:

Our sense is that the purpose of this committee is to determine a way forward in regard to international surrogacy. Our Minister expressed an openness to incorporating conclusions of this committee in the AHR Bill on the assumption that it would not delay the AHR Bill. The three-month timeframe was comfortable when announced. It is fair enough that this is now regarded as the commencement of the three months. That pushes us very close, I wish to signal that. Our assumption was that we would have been in committee in April, this month, but the concern is that the summer recess would move us into the autumn. There is an urgency notwithstanding the long time it has taken to progress the AHR Bill. Also, it is hard to envisage providing for international surrogacy in a Bill providing assurance, safeguards and regulation of domestic surrogacy. It is not clear to us that it will be concluded that the AHR Bill is the appropriate legal instrument. There may be other legal instruments advised by this committee at the end. It may be outside of legislation that these matters and objectives set out by all contributing today are reconciled in practice rather than in law. I suspect that may be the case as we do not have jurisdiction where the surrogacy is taking place in the context of international commercial surrogacy so it is just very difficult.

The worst of all outcomes would be that we would be considerably delayed and the conclusions would not actually have relevance for the AHR Bill. We are very open and as a Department we will support this committee in our work. We set out our intention to progress as quickly as possible, certainly in advance of the summer recess, to Committee Stage. This means it may be possible but it is an ambitious timeframe and a very complex area. As Mr. McGennis said, other countries that have looked at this have not found legislative solutions.

Mr. Karl Duff:

From our Department’s perspective we do not have existing legislation in this area bar legislation around adoption which is silent on the area of surrogacy. When the legislation was developed it did not consider surrogacy. This Department would not see itself as the lead in driving legislation in the area of surrogacy.

Mr. Andrew Munro:

When the Government determined to send the issues paper forward and bring this motion back to January to establish this committee it essentially decided that all three Departments should have regard to the deliberations and the recommendations of the committee and that they should be, insofar as relevant, taken on board in the development of the AHR Bill. It is for Government to determine which of us does what, so there is no need for me to start saying that I will do this bit or I will not do that bit. It will really depend on what the recommendations of the committee are. If there are recommendations on elements of the Guardianship of Infants Act, that is clearly going to be for the Department of Justice. If there are recommendations in regard to the AHR Bill obviously it will be for our colleagues in the Department of Health, and so on. I am not unduly upset about turf wars. This Government will take a collective view, as it does on on the development of all legislation. It will depend on what the recommendations of the committee are.

Mr. Muiris O'Connor:

In my experience all policy issues of substance and significance extend right across a number of Departments on a frequent basis. We absolutely acknowledge our leading responsibility for regulation and the oversight of health and social care services in Ireland. We have outlined our eagerness to provide for legislation and regulation for domestic surrogacy. We are keen to support deliberations on international surrogacy and recognise the real issues there. The balance of responsibilities has been clarified even in the course of the last hour for me, for children, parentage and health service provision. I am comfortable with that and, as Mr. Munro said, to work with each other collectively.

Mr. Karl Duff:

This Department will obviously collaborate with our colleagues.

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank the Chair and apologise that I was at another meeting and had an oral question in the Dáil. What research has been undertaken by the Department? What engagement with other countries has happened to see how other countries are legislating for international surrogacy? I do not know if this has been asked but the language in the AHR Bill seems to be asking intending parents using a surrogate to prove the surrogacy is within the law set out by the Bill. Has any thought been given to how this might work if it were to be applied in the international case? Are there any plans to reframe the language so that there is not an obligation to prove the surrogacy is legitimate, but a guidance on what legitimate surrogacy actually is, by which I mean, not for profit and so on? Has any thought been given to what a comprehensive agreement might mean in an international context? Nobody would encourage for-profit surrogacy but should the surrogate mother certainly be entitled to reasonable expenses, as would be in the case of domestic surrogacy? Will I go ahead Chair?

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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No, whichever Department wants to take it I am happy enough to have the information on it.

Mr. Muiris O'Connor:

I can start. The question came up earlier and the Chair asked for a note on international examples and we will provide that. In summary we are not aware of any EU member state that has developed a legislative solution to the issue of international surrogacy. Our own AHR Bill and summary note provides an overview of the safeguards that collectively we and the Government have determined as necessary to balance the rights of the child to know his or her genetic origins and the rights of parents to be regarded as parents and the rights and safety of the surrogates. The challenge we and other legislators have encountered is while we can bottom out and specify the safeguards and the rights that we seek to protect and that we move to protect in their own jurisdiction, it is hard to envisage an Irish agency or a sub-agency as was suggested earlier, being in a position to provide the assurance.

It is hard to envisage an Irish agency or subagency, as was suggested earlier, being in a position to provide assurance around the extent to which those rights and safeguards were adhered to in another jurisdiction. As the Deputy said, an international agreement, perhaps building on international agreements in the area of adoption and so forth, would be very helpful. To the extent that they would emerge within the EU, there is a conundrum that many of the destinations in which surrogacy is availed of are not in the EU. They are to the east of the EU and in states in America. We will provide a note. We will see even beyond the law; I do not want to just close it off. People have struggled to legislate beyond our jurisdiction. Across the three Departments, we will look at practices for the returning family to see how all those objectives can be achieved.

Mr. Karl Duff:

I will come in on Mr. O'Connor's point on the international piece. The special rapporteur has commented that one of the challenges in that space is that there is not a consensus across borders or countries. While the Hague Convention has worked well on inter-country adoption, it is more challenging in the surrogacy space where there is not a consensus on how to approach surrogacy across borders. That is the real challenge in being able to establish a convention or an international agreement.

Sharon Keogan (Independent)
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My question is for Mr. Duff. The Department obviously has concerns in regard to measures to ensure the rights and welfare of the surrogate mother are protected and respected. What would those measures be? What would they look like? How can the surrogate mother be protected?

Mr. Karl Duff:

This is a concern. It is mentioned in our opening statement and also reflected in the issues paper. With respect to health, it would probably need to echo some of the provisions in the Health (Assisted Human Reproduction) Bill 2022 in how that deals with surrogacy. What we are talking about here is the risk of exploitation of women in poorer countries. Mr. O'Connor talked about bad actors or intermediaries in this process. When we say we are concerned about the rights of surrogate mothers who may be in a poorer jurisdiction, we are referring to the fact that there are actors involved and these surrogate mothers may be taken advantage of. That is our reference in that regard.

Mr. Niall Redmond:

I will add to that in the context of the proposed legislation in the area of domestic surrogacy. There are a number of rights, which are set out in the briefing note, that we have introduced as proposals in that legislation. They relate to matters such as the requirement that the surrogate mother has legal advice, receives an assessment from a medical practitioner and has counselling available to her. We have put in place a number of safeguards in that legislation for the intending parent and the child as well.

All this goes back to the challenge of how we ensure and verify that a similar type of regime or similar types of rights are not only provided for in international situations but are also operationalised and delivered, and that the surrogate mother who is engaged with a clinic or service provider has some of those rights and services available to her. The challenge is one of being able to verify that and provide assurances that those safeguards are in place outside of this jurisdiction.

Sharon Keogan (Independent)
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How can the Department do that? How is it physically able to do that if the surrogacy takes place outside the jurisdiction?

Mr. Niall Redmond:

That is a large part of the crux of this matter.

Sharon Keogan (Independent)
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It is the challenge. Simply put, we cannot ensure that those women will protected in any shape or form.

Mr. Niall Redmond:

There are a number of options in terms of looking at that. It is complex and it is part of the debate in terms of how we balance all these rights and put in place frameworks that can provide some level assurance that those protections are in place, obviously, not just for the surrogate mother but for all the parties to a surrogacy arrangement. It is a challenge but there are options to be explored. I know the issues paper set out some of those.

There is no beating around the bush, however. It is a challenging and complex environment in which to engage. As we discussed, other jurisdictions internationally have grappled with this issue and have not yet been able to find solutions at this stage. Working through some of the complex matters, as this committee is doing, is the right approach in terms of looking under the hood of this a little more and trying to identify what those options and solutions could be.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am a little concerned about some of the discussion earlier. It was made obvious in the opening statement of the Department of Health that there is an urgency with the AHR Bill. I totally understand that. Do the witnesses believe new legislation will be needed to address the issues falling under the remit of this committee or are we looking at amending the AHR Bill? I ask all three Departments that question. They may very say the matter is up to this committee. I understood that this committee was given a three-month task to make amendments or possible amendments to the AHR Bill. I do not know whether I still have that opinion now after hearing some of this discussion. I have a concern about that. If new legislation is required, that needs to be discussed. Perhaps we will see that as we go through but I would like the witnesses' opinions on the matter.

Mr. Muiris O'Connor:

I thank the Deputy. As I said earlier, it is not entirely clear to us that a legislative solution will be the outcome of the committee's deliberations. Our Minister is open to accommodating a conclusion from this committee. That will push us quite close to the summer recess, however. The committee would need to agree a specific recommendation and such a recommendation would have to be accepted by the Government. Then, if legislative provisions are deemed to be appropriate and possible, they would have to be carefully drafted and agreed. We are open to that. We are, however, mindful of the complexity of the issue and the fact that it may not be entirely clear. I do not presume it will be the committee's conclusion that we would legislate in the AHR Bill when all of this is bottomed out but we are open to-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am sorry for cutting across Mr. O'Connor but I am conscious of the time. What if this committee comes up with great recommendations for amendments to the AHR Bill? Is it just the timeframe that is the issue?

Mr. Muiris O'Connor:

It is absolutely just the timeframe. We will support the committee's conclusions in every way we can.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Does Mr. O'Connor not see how frustrating that must be, though, for people who have been waiting for surrogacy regulations or legislation, whatever the appropriate word is? As was said, this was in pre-legislative scrutiny in 2017 and now, all of a sudden when this committee has started to meet, there is this panic about it. Maybe it is unfair to put the questions to Mr. O'Connor. It just seems very unusual and also very frustrating that now, all of a sudden, all of this has to be done before the summer recess when the Bill has been sitting there for years.

Mr. Colm McGennis:

I do not think it was so much that we were expecting amendments. In a perfect world, it would almost be more of an insertion in the Bill of a new Part to deal with international surrogacy.

In a way, the Department of Health felt that international surrogacy perhaps does not belong in our Bill anyway because we are basically regulating for domestic healthcare.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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The Department sees it potentially as a new legislative measure.

Mr. Colm McGennis:

Well-----

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I am just trying to tease that out. I am not trying to be difficult with anybody. It is important that we know because we want to be constructive in this committee and get the work done. People have been waiting for far too long and it is not fair. Ultimately, it is not fair to children. If that is what Mr. McGennis thinks, that is fine. At least if we know that, it helps inform the work.

Mr. Colm McGennis:

Our Bill ideally would be used as a legislative vehicle to put in a part for international surrogacy. That point might be important. In an ideal world, we would hope to be able to accommodate that.

Mr. Andrew Munro:

As I said previously, it depends on what the recommendations of the committee are as to where they fit. If there are recommendations relating to the Guardianship of Infants Act, they are clearly for the Department of Justice. I will speculate, and I apologise for doing so. If the committee was to recommend that a particular role be given to the assisted human reproduction regulatory authority, it would have to interact with the Department of Health legislation. We will have to wait and see what the committee says. I reiterate that when the Government decided on this in January, it asked all three Departments to take account of any of the recommendations that came forward for appropriate legislative amendments and it asked the Department of Health to take account of the recommendations in the development of the AHR Bill. I do not believe there are any differences between us on that. There is always a tension when bringing forward legislation as to whether one can hurry up and do it or hold the legislation back and fit something else in. I have a miscellaneous provisions Bill at present that we are trying to stop drafting so we can publish it and move on, while receiving requests for Committee Stage amendments to be made to it. There is always a tension around time. However, the pacing of the Bill will be a matter for the Government to balance out in light of the recommendations.

Mr. Karl Duff:

My apologies, Chair. I do not have much more to offer other than agreeing with the previous speakers on this. Whatever the recommendations are, our commitment in this Department is to work collaboratively with colleagues. I take Deputy Funchion's point that people have been waiting and the points made earlier by Senator Seery Kearney.

Lynn Ruane (Independent)
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I apologise if I ask legal questions that I really should understand, but I will bring it back down to basic questions. Obviously, we are not in a position to regulate something that is not within our jurisdiction, but we are in a position to regulate something that is in our jurisdiction, which means when intending parents arrive here. There is the legal question of what somebody's legal rights are when the person is here in Ireland, and then there are the ethical and moral questions that will decide the other stuff relating to commercialisation and whether the surrogate mother had the right supports in place and so forth. Which ones are we more obliged to address? Are we more obliged to address the legal questions of those pathways to parenthood when somebody is here, if we do not have jurisdiction abroad? Is it then just making an ethical call that by regulating we open ourselves up for greater conversations with other countries where there is surrogacy and different laws, to be able to meet those standards and have greater relationships? When it is boiled down, are we asking a legal question as to what we can do here to address the realities of surrogacy abroad, and whether we have any reach into other countries that we do not currently have? Do we have to decide between an ethical question of what happens in other countries versus a legal question regarding what happens when intended parents are here with their child? How do we balance the two?

Mr. Andrew Munro:

We do legislation all the time that involves looking at legal principles and the like. However, the first port of call is what the policy is behind it, what principles are underpinning it and what, practically, one wants to happen. The issues paper is not a statement of Government policy. It is simply an attempt to raise some of the challenges there to help inform the committee's debate and obviously to open up that debate more widely with other witnesses. It is identifying those challenges and saying what the fundamental things we need to protect are. There are rights of the child, the rights of the surrogate mother and-----

Lynn Ruane (Independent)
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I am wondering what our rights are in respect of the surrogate mother. That is the thing. If we have no jurisdiction, how do we ensure her rights? That is my question. I am not saying ethically we do not want that, but from an international law perspective.

Mr. Andrew Munro:

I understand what the Senator is saying. Obviously, it is easier if there is an international framework that outlines the rights of the surrogate mother and how other countries and both countries will respect them, but if we do not have that and we are entirely reliant on a domestic regime what do we do? Let us build a regime that says that before someone can be granted a pathway to parenthood, he or she has to establish that the rights of the surrogate mother were respected-----

Lynn Ruane (Independent)
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Standards.

Mr. Andrew Munro:

How does we do that? If we can identify the standards, perhaps that is a pathway to doing it, whereby we can show that the rights of the surrogate mother were respected and that she was supported and counselled. It is whatever basic standards from a policy perspective we think should apply.

Lynn Ruane (Independent)
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By regulating we open ourselves to being able to set those standards-----

Mr. Andrew Munro:

Yes.

Lynn Ruane (Independent)
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-----more so than having no regulation.

Mr. Andrew Munro:

Exactly, we can set the standards. Where the real challenge arises is that we can have all these standards in Irish law that state a surrogate mother in a foreign jurisdiction must have support or healthcare, for example, but how do we establish that it happened? Without an adequacy agreement or an international framework in place, the challenge is who is going to establish that and how they can prove it. There are ways of doing those things. They are just very challenging when one does not have regulatory supervision in another country. The fact that commercial surrogacy is done in so few countries shows the challenge that exists. Our domestic legislation sees the challenge with all of that.

It is not impossible, as I said earlier. It is identifying the fundamental principles we wish to protect and starting there. It is saying how we reach in and if we cannot reach in, what we can do when people get here to ensure that all these rights and principles were respected. We end up with different legislation. It is not about saying that the foreign authority will ensure this, but about what we can do from here. That is exceptionally challenging, although not impossible. I am sorry to say that it is the committee's job. That is why we gave it the issues paper. The challenge the committee has is to try to explore that and see if there is something out there. We do not see an easy pathway to that. That is why we raised the challenges in the issues paper.

Lynn Ruane (Independent)
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I am sorry for going over the time, but are there any other laws, and I know they would be very different from this, where we have international relationships outside Europe and for which we have had to create brand new frameworks that have a human rights aspect?

Mr. Andrew Munro:

I suppose it is adoption. The Hague Convention is probably the closest analogous thing in this area. I will ask my colleague to comment.

Mr. Cormac Grundy:

For the purposes of intercountry adoption, Ireland is a signatory to the Hague Convention. That means we allow intercountry adoptions only from other Hague Convention countries, where we can be satisfied about the consent of the birth mother and things of that nature. The issue for surrogacy is that there is no international convention. I know Hague does international private law and it is in the very early stages of looking at some type of international convention on surrogacy, but it is extremely early days.

Emer Higgins (Dublin Mid West, Fine Gael)
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I am happy to concede that time to my colleague, Senator Seery Kearney, if she wishes to use it. Her screen has frozen.

Emer Higgins (Dublin Mid West, Fine Gael)
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That is no problem. I apologise that I had to pop off for a little while. I had to attend a meeting of the Joint Committee on Disability Matters at the same time so I missed some of this discussion.

It is so useful to have representatives of all the relevant Departments here. That there are so many relevant Departments goes to show how complex this area is. This is why we all need to work at a cross-party level and departmentally to find a resolution. My question, which I did not get around to asking earlier, concerns the jurisdiction issues. Much was said about certain countries where practices may be more regulated than in others. I am concerned that if we start to treat different countries differently, we will be doing a disservice to children born through surrogacy in a country where surrogacy is unregulated. How do we square the circle? We need to ensure all Irish citizens born through surrogacy have the same legal standing in Ireland. The question is probably pertinent to the Department of Justice.

Mr. Andrew Munro:

It is an excellent question. It is not really about whether we treat the jurisdictions differently but whether we treat the children in the same way and ensure their rights are subjected to the same high standards. Just because somebody was in a particular country should not determine the protection of the rights of the child, intending parents or surrogate mother. These are the fundamental matters raised in the issues paper. These are the focus. It is not about whether we like country A or dislike country B; rather, the focus should be on the children and parents and on upholding their rights.

Mr. Muiris O'Connor:

I will invite Mr. McGennis to contribute on that. We did not intend to convey what the Deputy implied we conveyed. We recognise that international surrogacy matters are also urgent. What we were saying was that we are behind in providing the regulation and appropriate environment for surrogacy and AHR domestically. There is good international practice from which we have learned and this is reflected in the legislation going through the Oireachtas. We were not saying there was no urgency but that the path forward for international surrogacy was not at all as clear-cut as might have been envisaged. I was not saying there were no lessons. We will all rummage, research and supply notes on it. The point was not to diminish our recognition of the urgency of international surrogacy matters by comparison with domestic surrogacy matters. Does Mr. McGennis have the numbers? If not, we can follow up on them.

Mr. Colm McGennis:

The comparison we were given was on IVF and the broader remit concerning AHR that the Bill is regulating. We do not have numbers comparing domestic and international surrogacy at present. I do not know whether we could estimate how many people will avail of the domestic surrogacy provisions once they are in place. Our Bill has been long-awaited. It is connected to matters such as the public funding of IVF, which is an important issue of a time-sensitive nature for many. Maybe our point is that we potentially regard international surrogacy as requiring separate legislation. We are willing to accommodate it, but we would really like to press ahead with our Bill. People will say they have been waiting 20-odd years or a little longer. At this stage, with the Bill in the Oireachtas, we would really like to progress it as soon as possible.

Professor Conor O'Mahony:

I thank the committee for the invitation to speak today. By now, members will be well aware the Health (Assisted Human Reproduction) Bill 2022 offers Ireland an opportunity to address a very long-standing gap in our laws which has long been a cause of concern to international human rights bodies and our Supreme Court, among others, for some time. The absence of any legal framework on surrogacy has led to a considerable number of Irish families living in a legal twilight zone whereby a child is a legal stranger to one or both parents and the right to family life and right to identity of the children is not recognised. This is contrary to the best interests of children and fails to observe the principle of non-discrimination.

In 2020, the Government requested that I examine the issue of donor-assisted human reproduction, DAHR, and surrogacy, specifically through the lens of the rights and best interest of children. In response to this request, I produced a report in December 2020 that made 27 recommendations for legislative reform, drawing on international human rights law, an analysis of best practice in other jurisdictions and a detailed survey of recent academic literature on children’s rights in surrogacy.

In its current form, the Health (Assisted Human Reproduction) Bill 2022 would implement just two of those 27 recommendations, namely, that domestic surrogacy be limited to altruistic surrogacy and that legal advice would be available to potential intending parents. The remaining 25 recommendations are not reflected in the Bill as it currently stands. If the Bill is enacted without considerable amendment, it will be contrary to children’s rights and best interests in a range of ways.

I will give a quick summary now because I provided a briefing paper that goes through this in more detail. First, and of most interest to this committee, the Bill only addresses domestic surrogacy arrangements. It makes no provision, as members are aware, for any legal framework addressing international surrogacy arrangements. There is a reality here that even if domestic surrogacy is regulated, there will be a continuing number of Irish families who will engage in international surrogacy, whether due to a lack of availability of surrogate mothers in Ireland or for other reasons. The proposed approach in the Bill of leaving the current void in relation to international surrogacy in place amounts to keeping our head in the sand. It is contrary to children’s rights principles on a number of counts. Most obviously, it creates a discriminatory position whereby children born through domestic surrogacy arrangements receive a very different level of legal protection compared to children born following international surrogacy arrangements. It fails to vindicate the right to family life of children born following international surrogacy. It provides no framework for providing their right to identity. It will heighten the risk that some of those children will experience statelessness. In addition, it fails to account for a number of recent judgments of the European Court of Human Rights requiring states' parties to provide a pathway to parentage for children born following international surrogacy.

Second, the Bill makes no provision for retrospective recognition of family relationships arising from domestic surrogacy arrangements which occurred prior to our international surrogacy arrangements, which took place prior to the enactment of the Bill. Once again, this violates the principle of non-discrimination by treating children differently based on the circumstances of their birth. It again fails to respect their right to family life.

The Bill only currently proposes that children born following surrogacy arrangements would be allowed to access identifying information relating to surrogates or gamete donors from the age of 16. This is contrary to the legal position which states that the right to identity is a right of all children, and not only a right of children above a certain age. Equally, it fails to account of extensive research that shows that children who are made aware of the truth of their identity at an early age have better well-being outcomes than children or adults who only learn the truth at an older age. From that perspective, my report recommended that identifying information should be available from birth, initially to the child's parents, who would exercise the right to identity on behalf of the child and then, subsequently, to the child above a certain level of age and maturity. Unfortunately, that is not reflected in the Bill in its current form.

Fourth, the Bill makes no proposals to address a number of important anomalies which arise in the law governing donor-assisted human reproduction, even though we enacted legislation in 2015 governing donor-assisted human reproduction. That legislation results in some children falling outside the scope of the protection of that legislation and not having their family relationships recognised. My report made a number of proposals for filling those gaps and ensuring that all children would be treated equally. However, again, there are no proposals in the Bill in respect of that.

Finally, in respect of the transfer of parentage in domestic surrogacy, the Bill proposes a post-birth transfer of parentage. My report recommended a pre-birth transfer of parentage to avoid a gap arising in time between the birth of the child and the transfer of parentage, during which time the intending parents would have no right to make decisions in respect of medical treatment of a newborn baby who perhaps might be unwell, premature, or so on. That will appear to be contrary to the best interest of the child. However, the Bill, as I said, has settled on the post-birth transfer of parentage, which allows that gap to arise.

There are other points, but those are the main ones that I wish to highlight. My report goes through all of this in more detail. The briefing paper which I provided for members today itemises the recommendations in the report and benchmarks them against the Bill so they can see clearly where the disconnects arise. I look forward to discussing all of this with members.

Sharon Keogan (Independent)
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I have a few quick questions. What does the Bill propose in terms of any safeguards to the women exploited internationally by the process of commercial surrogacy? Has there been any consideration of why commercial surrogacy is banned entirely almost throughout Europe, yet Ireland is proposing to protect it?

Sharon Keogan (Independent)
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I sincerely apologise. Can everyone see me now?

Sharon Keogan (Independent)
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Basically, Ireland is saying that it is okay for international surrogates to be exploited commercially, but it is not okay for Irish women to be exploited. It is a bit of a double standard.

I just want Professor O'Mahony's views on the temporary ban. Should it be put in place to perhaps pause further international surrogacy in Ukraine, perhaps during the ongoing war? Ukraine seems to be a supermarket. I am using the word "supermarket" because that is the word that-----

Sharon Keogan (Independent)
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All right. This language-----

Sharon Keogan (Independent)
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I am well aware of the sensitivity of the subject. This is what it was referred to by Mr. Mykola Kuleba, Ukraine's Commissioner of the President of Ukraine for Children's Rights.

Sharon Keogan (Independent)
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Ukraine has a culture-----

Sharon Keogan (Independent)
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I know, but this is his language. He basically said that Ukraine has become a supermarket for surrogacy.

Sharon Keogan (Independent)
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A child is already becoming a commodity, but a woman is an incubator that has to carry this product for someone. That is what he said. In addition, there is a human rights ombudsman for Ukraine's Parliament who basically said that Ukraine is just turning into an online store for little ones. This is very concerning. Perhaps a better way, surely, is to have countries such as Ukraine agree not to allow couples from countries where commercial surrogacy is banned to avail of it there.

Ireland could easily seek to enter into such an agreement. We have big international agreements already in relation to international adoptions.

I am quite astonished. We have not learned anything from the past, particularly on how we treated women in our mother and baby homes, that we are happy to stand over the behaviour as long as we do not see it and it is in another country. Commercial surrogacy does not sit right with me. I know it is a sensitive subject. Those are merely my concerns.

Perhaps Professor O'Mahony can give me some indication of the international agreements. Is there a possibility of an easier way for the country to seek such agreements in relation to adoption? Would that be a better way to go?

Professor Conor O'Mahony:

I thank Senator Keogan. It was discussed in the first session this morning that in contrast to the Hague Convention on international adoption there is not any realistic prospect in the short-to-medium term of a similar international agreement in relation to surrogacy due to the fact that there is no international consensus on the issue of surrogacy. There is a wide range of approaches taken in various states around the world. In order to put in place an international legal framework, one needs to secure a consensus of a significant number of states to make that a viable proposition. That is not where that discussion is at present. It is not likely to be there any time soon, as far as I understand it, which means in the meantime we need to think about what we do in our domestic law. Rather than leaving the gaps and voids which we currently have in our law and all of the problems which have been identified that flow from failing to have any laws in place, we need to fill those gaps and decide for ourselves what is the optimum model for Ireland. In the event that an international consensus emerges down the line, of course, that is a process we can engage in and, potentially, re-look at our domestic law as part of that but leaving a void during a period in which it does not seem realistic that there will be an international convention that will bring international consistency to this area is not a viable approach.

Sharon Keogan (Independent)
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Does Professor O'Mahony agree-----

Sharon Keogan (Independent)
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-----that there are already international agreements in place? Are there or are there not?

Emer Higgins (Dublin Mid West, Fine Gael)
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A particularly uplifting story that made it to the national airwaves was that of Ivana and Cathy recently. Cathy has children born through surrogacy. Ivana was the surrogate mother in Ukraine and, as many people will be aware, has now come to live with Cathy and her family in Wicklow. I suppose I highlight that as a case in the context of what the previous speaker has said about women in Ukraine being seen as incubators. That is absolutely far from the truth always. I suppose it is a great example of where an Irish person who has benefited from surrogacy has, as she said, carried Ivana's family when Ivana carried hers.

I agree with the Chair when she stated we need to be particularly careful around the use of language at this committee. Even if one is quoting someone, it does not matter. To use expressions such as "online store" and "supermarket" is seeking headlines and trying to be controversial when what we need to do is have a debate.

Sharon Keogan (Independent)
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These were words used by international experts and legal experts and an ombudsman. One cannot deny what is happening here in Ireland.

Emer Higgins (Dublin Mid West, Fine Gael)
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I would be interested to hear what safeguards Professor O'Mahony believes could be put in place to protect everybody involved in surrogacy.

Professor Conor O'Mahony:

I thank the Deputy. In my report, the safeguards which would be in place consist essentially of court supervision of surrogacy arrangements. In order to have a surrogacy agreement recognised and to have parentage transferred from a surrogate mother to intending parents, a judge would be assigned. As part of the ongoing process around the establishment of specialist family courts, we would have specially trained judges with expertise in child and family law who would be in a position to supervise the arrangement and test whether the range of criteria and safeguards which one would insert in the legislation have been met. My report makes recommendations for what that legislation might look like. Of course, one could add additional safeguards. A judge would have to be satisfied that those safeguards have been complied with before an order could be made transferring parentage from the surrogate mother to the intending parents.

My report recommends that that process could arise both in the context of domestic surrogacy and international surrogacy. As we have mentioned, the Bill only makes proposals in that respect in relation to domestic surrogacy. It does not include any proposals around international surrogacy. The discussion this morning, which I was listening to, was the first opportunity I have had to hear the rationale from the Department. I believe there is an issues paper being prepared. I have not had any engagement with the Department since I submitted my report and I was not aware of the reasoning around why the recommendations have not been implemented. I can elaborate on this as the session continues but in my view, it would be possible to put in place a court supervision process that could address the question of whether safeguards have been complied with in an international context as well as in a domestic process. That process, however, given the more complex reality of international surrogacy, would have to be a more involved and more detailed process than it would be for domestic surrogacy.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank Professor O'Mahony.

Emer Higgins (Dublin Mid West, Fine Gael)
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No, that is fine. I am happy to move along and make sure everyone has their say.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank the Cathaoirleach and thank Professor O'Mahony. Professor O'Mahony addressed the Joint Committee on Children, Equality, Disability, Integration and Youth as well a number of months ago which I found extremely interesting, and his report is excellent. Like many people, I am wondering too why some of this stuff has not been implemented.

The question I want to ask comes out of the earlier session around this discussion about whether we are potentially looking at new legislation or we are looking at amending the Health (Assisted Human Reproduction) Bill 2022. I would like to know Professor O'Mahony's opinion. Which is potentially a better option? Once we have the Health (Assisted Human Reproduction) Bill 2022 here, why do we not use that as the framework? If that is not to be amended, I note in his statement Professor O'Mahony says that it "will be contrary to children's rights". Where does that leave us if we do not change that Bill?

My final question, if there is time, is in relation to when Professor O'Mahony states his report recommends "for international surrogacy [that] parents ... apply to the High Court for parentage ... subject to satisfying a range of prescribed criteria". Merely for information, does the professor have examples of what he might think would be prescribed criteria?

Professor Conor O'Mahony:

I thank Deputy Funchion. I must confess to being rather taken aback by the suggestion earlier that international surrogacy does not belong in this legislation. The question I would ask is, if it does not belong here then where does it belong? My big concern, knowing how legislative programmes work, is that if this does not make it into this Bill we could be looking at a long wait before any separate Bill dealing with international surrogacy makes it back to a process such as this and that intervening period would continue the problems which we have identified around children coming to this jurisdiction where they are legal strangers to one or both parents, where citizenship is an issue and where identity is an issue. From that perspective, I am clear in my mind that a comprehensive single item of legislation that addresses everything to do with surrogacy but also donor-assisted human reproduction is the appropriate way forward to avoid the situation where it drops off the political priority list on the basis that we have just passed legislation on that and we do not need another Bill or we do not need it soon. That would be my concern.

As to how one goes about dealing with that, of course, there could be different models. Earlier today, there were comments made about how no other country has yet put in place specific tailored legislation around international surrogacy and how other countries have adapted their family laws to deal with it instead. As for taking that approach of adapting family laws rather than dealing with it in a specific legislation, first of all there are no proposals in Ireland about what that might look like. Second, that gives rise to its own difficulties. For example, adoption might be what they use in France as a means of plugging this gap but it is a very different adoption process, which, I believe, can be completed within three months.

It is very different to here, where it takes much longer.

Adoption is also unsuitable for some people due to health reasons. For example, a cancer patient who is unable to conceive due to cancer may find themselves also unable to adopt for the same reason. Equally, the proposals in my report on a specific piece of legislation also take the view that it is better to target surrogacy rather than to adapt general family law because surrogacy gives rise to issues which do not arise in a general family law situation, in particular around the right to identity.

One of the criteria in my report was about ensuring that a child's right to identity could be protected, that we have a donor who is not anonymous and that there is a record keeping situation whereby you can file details of a donor's identity and so on, and that it would be part of the process. Whereas, if we rely on general guardianship laws, for example, that would not be protected in the same way. There would be a gap in general family law that would not give that protection to the child's right to identity.

Some of the other criteria related to ensuring that the surrogate has genuinely consented - given free informed consent to the process - which can be done in a number of ways to ensure that laws governing the sale and trafficking of children are complied with. Again, those are prescribed criteria which I suggest in my report, but which would be absent from the picture if we relied on general guardianship law as the vehicle for recognising family relationships.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I thank Professor O'Mahony. That is one of the most comprehensive answers we have got since we started. I know we are only two hours into our proceedings, but I really appreciate that directness.

Lynn Ruane (Independent)
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Many of my questions were on the same issue because I was sitting here wondering what an enhancement of family law would look like. I thank Professor O'Mahony for that. I would welcome a view or comment from him in the context of international law. The Commission will not report on its position until later this year, but my question is aimed at improving my own understanding. President von der Leyen said that if you are a parent in one country, you are a parent in every country. The intention is to look at an international framework about how that exists. What exactly does that mean? Is that looking at it just in terms of recognition between member states or is it looking at setting an international framework for what parentage is that states would have to sign up to? Exactly what does it mean when it is broken down?

Professor Conor O'Mahony:

My understanding of the proposal that is being considered at EU level is about the mutual recognition of parentage. In other words, in the event that somebody was recognised as a parent in law of one EU member state, they would automatically qualify for recognition as a parent in another EU member state. That is a proposal which is not specific to the issue of surrogacy, so it would not potentially address quite a number of the concerns around international surrogacy that we have just mentioned. Equally, it would only be limited to EU member states. When we talk about international surrogacy, we really cannot afford to zone in on just on EU member states, because it is a much bigger picture than that. The reality, as we know from experience, is that most Irish couples who travel abroad to engage in international surrogacy travel to non-EU member states. As a result, EU law is not an appropriate vehicle for dealing with arrangements that arise in Ukraine, California, Canada, or any other country where Irish couples most frequently go. It is possible that it may smooth over certain issues in certain situations, but it is a much too narrow project to address the wider issue of international surrogacy that we are speaking about today.

Lynn Ruane (Independent)
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All I really needed to know is whether that piece was going to impact on this piece. It is clear that it is not. It would be too narrow. That is okay.

Lorraine Clifford-Lee (Fianna Fail)
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I thank Professor O'Mahony for his presentation. I want to go back to the court-ordered supervision model he mentioned. Perhaps he could provide a little more detail around that. Does he envisage court-ordered supervision being conducted by Irish-based lawyers or other professionals or would they be based in the home country of the surrogate mother?

Professor Conor O'Mahony:

That is something on which my report was silent. I guess, in principle, it could be either or both. The recommendation, broadly speaking, was that international surrogacy arrangements would involve an application to the High Court. I mentioned earlier that this would be a more involved process than for domestic surrogacy. Whereas a domestic surrogacy arrangement could potentially be improved at District Court or Circuit Court level, the higher level of supervision of a High Court proceeding would be appropriate in the case of international surrogacy, to reflect the heightened level of supervision due to the additional risks involved in an international agreement. As to who would be making the application, that could be Irish lawyers making an application to the Irish High Court. It could also be that there would be lawyers from another jurisdiction making an application to the Irish High Court. There is no reason in principle why it would have to be one or the other; in many cases it could be a collaborative effort whereby a couple may have lawyers in each jurisdiction.

One of the points that came up earlier was a question on the timing of the application. There was another issue relating to the two-stage process. I will deal first with the two-stage process. Why is it that the report recommended that it would be a two-stage court process for domestic whereas only a single stage for international? That is simply because on the authorisation question; an Irish court does not have jurisdiction to authorise an arrangement in another country. That is why there was no recommendation on advance authorisation by an Irish court for an arrangement in another jurisdiction, because it would simply be outside the jurisdiction of the Irish court.

The other question was whether that hearing would be held before or after the child arrives in the jurisdiction. This is a point of detail rather than a point of principle. It could be either, in principle. There are advantages and disadvantages to each approach. I settled on recommending that it would be before the child is brought to the jurisdiction, which I took from the Belgian approach. The idea there is that if in the event that the Irish court were to look at the arrangement and decide in the course of supervising it that the law of the country where the surrogacy arrangement had taken place was not compiled with, then it would be better to find that out before the child leaves that jurisdiction and arrives here rather than to find it out after the child arrives here in the jurisdiction. The courts in England and Wales have commented on a number of occasions that by the time a child arrives in the jurisdiction, it creates a situation where it can be quite difficult for the courts to refuse to recognise an arrangement because it is almost too late at that point. That was my thinking in recommending that the court application would occur before the child arrives in the jurisdiction. It could take place after the child arrives in the jurisdiction, but it carries that disadvantage of going down that route.

The issue was raised earlier as to how that would work with remote hearings in terms of the timing and so on. My report had recommended that, first, remote hearings are now a feature of Irish courts. Since Covid, they are very much part and parcel of how Irish courts work. Equally, however, it is the kind of hearing that could potentially be handled by the intending parents' lawyers and the parents would not necessarily have to be present.

On the question of timing and whether this might run into difficulty with visas expiring, my report recommended that this could be scheduled. There would be a reasonable degree of certainty about the window within which the baby would be born, so we could potentially schedule this in advance on a fast-track situation to avoid lengthy delays between the birth of the child and the holding of the hearing. That was the model I recommended. Having said that, there is no reason in principle why it could not equally happen after the child arrives in the jurisdiction.

Lorraine Clifford-Lee (Fianna Fail)
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I will ask a follow-up question. If, for example, a court decided not to authorise the arrangement due to some failure in the certification process, I suggest that it is already too late once the child has been conceived and the gestation is ongoing because we are going to end up with a baby at the end of the process. There are so many children already affected by a legal lacuna. We are trying to safeguard those children. Are we not creating another gap whereby children and parents are not given rights?

Professor Conor O'Mahony:

There is an inherent difficulty given the nature of surrogacy that where laws are not complied with, we do end up with a very difficult choice between, on the one hand, approving an arrangement where perhaps the surrogate mother did not fully consent or there was some violation of the law of the country in which it took place or if we create that lacuna. It is not an ideal scenario.

That is why a big part of the report was that to seek to avoid some of these issues arising, we would prefer to incentivise people to engage in domestic surrogacy as far as possible. We can regulate what happens in domestic surrogacy arrangements more effectively and have the advance approval I mentioned, which is difficult to have in the context of international surrogacy because we cannot grant or withhold approval of what happens in another jurisdiction. If we arrange our laws in such a way that domestic surrogacy is a more streamlined and preferable process for intending parents in order that as many of them as possible stay in the jurisdiction and avoid international surrogacy, then we can try to catch some of these issues before they happen.

How do we do that? We do it by making the process more attractive to intending parents in this jurisdiction. The pre-birth transfer of parentage was the mechanism that my report recommended for that purpose. That would be a more attractive model to intending parents than the post-birth transfer and would incentivise more Irish intending parents to stay here under a higher level of domestic supervision, rather than travelling abroad where there are more variables and things we cannot control. That was how the report proposed to mitigate those risks as far as possible but we can only mitigate these risks, not fully eliminate them.

Mary Seery Kearney (Fine Gael)
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I thank Professor O'Mahony for his opening statement and his report, which has been well read and well thumbed by me at this stage. I too had difficulties with the idea this morning that this is not placed within the AHR and does not have a place in it. At the core of surrogacy is infertility, which may be medical or social. Concerning the medical reasons for infertility, we have a practice in Ireland whereby if you have cancer of a particular type, they will freeze your eggs but you may go on to have a hysterectomy. What was the point of freezing the eggs if you have no womb to carry a baby in? There is a requirement, at the very least, in the AHR Bill to provide that pathway and deal with that. I was uncomfortable with certain states within the United States being mentioned this morning and New York, for instance, being left out, which has a very good regime for surrogacy.

Professor O'Mahony has alluded to today and mentioned in his report that there are deficits in the Children and Family Relationships Act, one of which relates to reciprocal IVF in same-sex couples. This relates to social infertility, which affects same-sex couples by their very nature. It has been said that Ireland does not want to be an outlier or be the first to legislate. We were the first to legislate in that manner for marriage equality, and nobody had a problem with that. Particular prejudices are coming out here, rather than genuine concerns. The shortcomings in the Children and Family Relationships Act discriminate particularly against same-sex female couples. Will Professor O'Mahony address and explain that? It is a real issue.

Professor Conor O'Mahony:

I thank the Senator. There are two main gaps in the Children and Family Relationships Act 2015 with respect to donor-assisted human reproduction. One is in respect of what are known as at-home procedures, which are where the couple engages in artificial insemination at home rather than through a fertility clinic. The Bill does not cover that scenario and there is no qualification for the provisions of that Bill to allow for the social parent in that couple to be recognised as the child's parent from birth. They fall back on the other provisions mentioned earlier around having to wait for at least two years before making a guardianship application. The rationale for that is that if you go through a clinic, the child will have his or her right to identity better protected because the clinic has record-keeping obligations and the identity provisions of the Bill become operable. However, my assessment was that creates a situation where the child whose identity is not protected also does not have their family relationship protected and ends up with neither. It is a disproportionate way of seeking to protect identity.

That is why my report recommended an intermediate measure, which was to say that in relation to an at-home procedure where identity is not protected, you could qualify for immediate guardianship upon birth so there would be recognition of the family relationship. As an incentive to try to ensure identity was protected, where the couple had used an identifiable donor and filed the relevant details with whatever registry was set up to handle this, you would qualify for full parentage and not just guardianship. That would nudge couples and channel them towards a situation where children born through at-home procedures could have their both their identity and their family relationships recognised and achieve the best of all worlds. There are no proposals in the 2022 Bill in respect of that point as things stand.

The other gap in the 2015 Act was around retrospective recognition of donor-assisted human reproduction procedures which occurred before the legislation came into effect. The situation there is that, where the couple used a donor known to the couple, they would not qualify for the machinery of the 2015 Act and would have to fall back again on the two-year guardianship wait. That appears to be based on a rationale of seeking to avoid conflict arising between a known donor and the parties. However, we saw in a Supreme Court decision called McD. v. L, which arose some years ago in circumstances where there was not access to parentage provisions, that if that conflict is going to arise, it will arise anyway. This provision of the 2015 Act simply does not seem to achieve the goal it sets out to achieve. For that reason, my report concluded that was not a justifiable discrimination between children born using a known donor versus children born using an unknown donor. Therefore, that provision should be removed and the couple engaging in the retrospective recognition process should be entitled to make the application, whether the donor was known or not.

Erin McGreehan (Fianna Fail)
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I welcome Professor O'Mahony and thank him for his attendance. It is good that we are at this point. Coming from the session we had earlier, I was confused - maybe that is the wrong word - or disheartened that many responses were to the effect that it was very difficult and there is hesitancy because people have struggled to legislate for this so far. However, the fact, as has often been highlighted by Professor O'Mahony, is that there are children in this country whose rights are not being addressed. Families are in a lacuna of the law and the last session did not furnish me with hope that the Department was looking towards the remit of this committee, part of which is to legislate and look after the rights and interests of all parents and the children alive and living in loving families in this country.

The following might be a naive question and I am trying to get my head around all the legalities of this, so I offer my apologies. In Part 7 of the Health (Assisted Human Reproduction) Bill, the requirements for surrogate mothers and domestic surrogacy are outlined. Is there a mechanism available to move those requirements in a parallel way so as to register and allow children born in international surrogacy to be accommodated under the same requirements as domestic surrogacy, such as that the mother must be at least 25 and have previously given birth to a child, so that all these things are mirrored and there is a way to check those requirements on international surrogacy?

In their statement, the Department of Health representatives stated it is generally understood that most foreign surrogacies involve commercial payments beyond reasonable costs. As a complete newcomer to this, I note the Department of Health states it understands this to be normal practice.

The surrogacy bodies and the people who are involved in it do not mention commercial payments. It is more compensation and reasonable costs. Yet, the Department generally understands this to be the way.

Our issues paper states there are no official data and there is no reliable source. In Professor O’Mahony’s understanding, where is the Department getting this general assumption, considering we do not have any official data or reliable source recording any of this? We do not have reliable sources because the Department is failing. It is keeping its head in the sand about the reality of modern life and our global world that our citizens are partaking in international surrogacy. We have to look after the citizens. Regardless of whether people agree with this, there are children born who deserve rights.

Professor Conor O'Mahony:

On the first issue about the discussion this morning around a lot of things being described as very difficult, that was my sense as well, that the reason given for certain things not being done was because they were difficult. To me, that does not seem to be a legitimate reason. When I was writing my report, it would have been much easier for me to say I will not say anything about international surrogacy because no other country has as of yet designed a framework specifically for this and therefore I am not going to try. That would have been a much easier path and it would have taken me much less time, but that was not the route I decided to go down. Just because we are the first to do something does not have to mean we will never do it or that we will only follow and never lead.

The mandate I got for that report was to come up with proposals based on international children's rights law and drawing on the best material available, from the UN Committee on the Rights of the Child, the UN special rapporteur on the sale and sexual exploitation of children and the European Court of Human Rights, ECHR. I attempted to explain what this law would look like. Of course, there may be points of detail that could be tweaked and so on, but to my mind, just because it is difficult, challenging and complicated is not a reason to avoid doing it. There is a principled way to design that law from scratch and to be a country that takes the lead and shows how we might do this.

This is also a reflection of what I said earlier in response to Deputy Funchion’s question, that workarounds that perhaps are available and that work in other countries might not work so well here. Therefore, we have to adapt to that reality and to what we need here. Could we mirror domestic requirements in respect of what we will or will not recognise internationally? “Yes”, is the simple answer. We could say that and make it clear around, for example, the minimum age or the requirement that someone has had another child with someone. Yes, we could.

The commercial question is where things become a bit complicated. By its nature, the reality is that in most cases where people engage in international surrogacy, it will have had a commercial dimension. How else will one identify a surrogate internationally? That is the reality. Identifying somebody who will act as an altruistic surrogate for somebody in another jurisdiction is likely to be very challenging. It is fair to say the majority, if not all, of international surrogacy will have a commercial dimension. That then gives us the challenge that if that is going to continue to be available in other jurisdictions, which it will, and there continue to be Irish couples bringing children back to Ireland who engaged in commercial surrogacy that complied with local laws in other jurisdictions, we have to respond to that reality. Right now, we are not responding to it. Right now, we are pretending it does not exist. We must have some form of framework for dealing with that. The detail can be worked out, but we know right now that having no framework for it is problematic and violates the rights of children and the rights of the families. We have a choice. Do we continue to allow that situation to persist or do we grasp the nettle?

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
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I thank Professor O’Mahony for his statement because, as my colleagues have said, this morning was disheartening. Professor O’Mahony has come in here with a clear and comprehensive view of what we must do. It is unfortunate to see sometimes, one would feel, the arms of the State going against doing what has to be done. Just because it is difficult does not mean we cannot do it. I thank Professor O’Mahony for his work. I do not really have any questions because I think it has been very explicit. I suppose the crux of what Professor O’Mahony is saying is that we cannot miss this opportunity to ensure international surrogacy is included in the work we do.

Professor Conor O'Mahony:

Just to elaborate a little bit on what I said earlier in that respect, I am very conscious this is an issue that does not just go back to 2017. If we go back to 2014, when there was a Supreme Court decision on this point, counsel for the Attorney General went into the Supreme Court in that case and essentially said to the courts we do not want the courts intervening and making radical decisions on surrogacy because the Oireachtas is working on this and there are proposals in development. That was 2014. Originally, the proposal was to have that in place before the marriage referendum in 2015. That was then carved off the 2015 Act because it was deemed to be too complicated to get it finished in the time that was then available. We then had another Bill in 2017. We have another one this year. This is something has been a long time in development. It has taken us an awfully long time to reach this point. My fear is that anything that does not make it in now may take just as long to come back around for another pass at it, if not longer. It could be potentially even longer because we would be looking not at a complete gap but at a partial gap. Therefore, getting it the level of political priority and the space on the programme of legislation may prove to be very challenging. If this is omitted now, it would be a huge opportunity missed and one that is likely to have quite adverse consequences for the people affected.

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I, too, thank Professor O'Mahony. I, too, was late coming in this morning and I think all of us were a little bit disheartened. What really concerned me was when Professor O’Mahony said there had been no contact with him from the Department. For me, that is a real concern. Ireland is the third highest country per capitato avail of international surrogacy. We have to legislate, but our framework, as Professor O’Mahony said, is non-existent. As far as we heard this morning and as we know now, no other EU country has legislation on this. They seem to be operating under family law. I understand from this morning that there is a policy paper that is planned to be in process at the end of the year.

My concern is this committee that has been formed is meant to last three months. We were told when we came to this committee that we were looking at three months. Surrogacy now falls under different Departments, from justice to children to health, and we could even be looking at social welfare. What would Professor O’Mahony like for us to achieve here? I have been meeting with surrogacy families. I know what is happening in the community. Again, I can only say it is such a sensitive area. I would give my full support to this, because I believe it has to happen urgently. We cannot be going on and on and on. As Professor O’Mahony said, we need to make sure the framework is correct because it has to be, but we also need to make sure we have a solution here. We have to look at whatever areas we need to look at. What would Professor O’Mahony like to see us achieve? What would be his main issue for us so that we can as a committee say, “This is what Professor O’Mahony is saying to us and this is what we need to deliver”? As I said, we are being told this is only a three-month committee and I just do not think at this stage that it is doable. It is too sensitive. We have to get this right. Timing is a crucial issue.

Professor Conor O'Mahony:

I thank Deputy Murnane O'Connor. That is a very big question, given the number of different details that arise in this context. Like many members of this committee, I find it a little disappointing that all of a sudden there is a huge rush after so many delays. Of course, this is time sensitive for individual families, but at the same time this is once-in-a-generation legislation that will regulate this area for a long time to come. From that point of view, rather than rushing something before the summer recess, my preference would be for it to get more time if it needs it to get it right rather than rushing something through that will have gaps or which will be problematic at a later point. Loath as I am to suggest something should take longer when it has already taken this long to get here, there is a time for haste and there is a time for a more considered approach. In this context, we have legislation that has taken an overly narrow focus, that is only looking at future domestic surrogacy, and is doing nothing at all about international surrogacy or retrospective cases that arose before the Bill came into place. It is far from comprehensive legislation. It will exclude potentially as many people as it includes.

From that point of view, I would think it better to slow things down a little and get it right than to meet a relatively arbitrary deadline of the summer recess.

Professor Conor O'Mahony:

The quick answer is "No". The terms of reference for the report are appended to it and set out what I was asked to look at. I have been three years in this particular role as special rapporteur. I have completed four reports in that role. The most recent, which related to illegal birth registrations, was published with a specific document setting out the Government's response to the various recommendations in it. Other reports do not necessarily have such a document accompanying them. I am not naive and do not expect that everything I recommend will make it into legislation or policy. It is not my function to make those decisions; my function is to make recommendations. At the same time, in a context where one is asked to provide a particular independent and expert view on a subject, and one does so in accordance with the terms of reference, an implementation rate of approximately 7% is a bit lower than one might hope for. Part of the reason I am here today, and grateful to be here, is to advocate once again for the fact that those recommendations were given in response to a specific request from Government. They are informed by international children's rights law. They were informed by the most recent available academic literature. That is where I am coming from. I commend the report to the committee and to Government but it is ultimately for the Government to decide.

Professor Conor O'Mahony:

Nothing, other than acknowledgment of receipt of the report.

Kathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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I do not have much more to add other than that the report Professor O'Mahony has published is going to be extremely helpful for us and we are very lucky to have it. Other things will be said over the course of the three months of the committee's existence but the report is a good starting point for us.

Given the comments that were made earlier by the representatives of the various Departments, I wonder would there be value in the committee asking the Ministers to come before it. I know we are facing a tight timeframe and have a schedule of meetings but I think we need clarity as to whether the issue will be dealt with as part of the assisted human reproduction Bill or there will be new legislation. I would advocate for its inclusion in the assisted human reproduction Bill. If it is not possible in the short time available, I would like at least a written commitment from each of the Ministers. I did not get a sense of urgency earlier, unfortunately, from any of the Departments. There was no sense that this is on their radars. That is not a question for Professor O'Mahony. I was taking the opportunity to make that point. I thank Professor O'Mahony not only for his contribution today but for all the work he has done in this area. It is very helpful.

Lynn Ruane (Independent)
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What I am wondering has less to do with the rights of the child and more to do with where bodily autonomy, reproductive decisions and the rights of women come into these conversations. If we consider the termination of pregnancy, if we are honest, we would have to say that economic considerations come into play when people decide whether to terminate a pregnancy, regardless of their socioeconomic background. I am curious about the inverse of that where someone chooses to carry a pregnancy and the commercial considerations involved. Do we all of a sudden suspend a woman's bodily right to choose and to decide her own reproductive rights? Do those aspects come into the conversation around surrogacy at all?

Professor Conor O'Mahony:

There is a conversation to be had on that point and it is being had in the academic literature. Conversations are ongoing about the limits of paternalism in this area. There are, broadly speaking, two camps, one of which expresses concern about potential exploitation of surrogate mothers and the other of which expresses the view to which the Senator just alluded. The latter view is that if we are to recognise people's autonomy and agency in making these decisions and appropriate safeguards are in place, the idea that somebody who decides to engage in surrogacy should be disqualified from receiving any economic reward for making that decision would not sit well with the more general principles around agency, autonomy and so on. That is a debate to be had. It did not form part of my report because it was not part of the terms of reference. It is not part of my remit as special rapporteur on child protection. I was coming at the issue specifically from a children's rights angle.

The most relevant recommendation in the context of the Senator's question was the recommendation that domestic surrogacy should be altruistic only. That recommendation was to ensure that our domestic framework, the laws which we can pass and over which we have control, meet the highest standards around the laws governing the sale of children. It was specifically in response to some of the output of the UN special rapporteur on the sale and sexual exploitation of children and seeking to ensure that our laws meet those requirements to the highest possible extent. That is one view. Through a broader lens, the separate debate to which the Senator referred is also going on.

Erin McGreehan (Fianna Fail)
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I have no further questions. I thank Professor O'Mahony. We have a lot of work to do and that was highlighted more than ever by the contributions of the representatives of the Departments in our previous session. We will have more questions for Professor O'Mahony as the committee moves on because there will be many things we need to ensure we respond to adequately. I thank him for his time.

Lorraine Clifford-Lee (Fianna Fail)
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Would Professor O'Mahony prefer stand-alone legislation to deal with surrogacy or does he think an insertion into the main assisted human reproduction Bill would suffice?

Professor Conor O'Mahony:

In principle, either could be done. Going back to the point I made earlier about the delays we have seen in reaching this point and the risk of opportunities being lost, even though from a technical legal point of view the Government could deal with donor-assisted human reproduction in one Bill and surrogacy in another, I would be of the view that it would be better in this legislation to take as comprehensive an approach as possible to dealing with issues arising in respect of both donor-assisted human reproduction and surrogacy, first of all to ensure we do not miss those opportunities and, second, to try to establish a degree of consistency to avoid discriminatory approaches. For example, the Bill as it currently stands would create a discriminatory approach on the right to identity whereby children born following surrogacy arrangements would be able to access identifying information at the age of 16 whereas children born following donor-assisted reproduction would have to wait until the age of 18. It is about trying to avoid some of those anomalies. Dealing with them both in a single piece of legislation lends itself more effectively to a comprehensive and consistent approach.

Lorraine Clifford-Lee (Fianna Fail)
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Is Professor O'Mahony concerned that if we had a stand-alone Bill to deal with surrogacy the momentum might be lost?

Professor Conor O'Mahony:

I am, in short. That is gazing into the future a little bit and we can never tell what way the political winds will blow. However, I think there is a significant risk that if it is to be carved off as separate legislation, depending on events in politics and what happens over the coming years, it may be a long time before this makes its way back to the floor of Dáil Éireann.

Lorraine Clifford-Lee (Fianna Fail)
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If that risk was not there, would the gold standard be to have a stand-alone Act?

Professor Conor O'Mahony:

Not necessarily. From a technical legal point of view, whatever approach is taken will involve the interaction of different legislation. There would, at the very least, be interaction between the surrogacy legislation and the legislation governing guardianship, custody and so on. There is never going to be legislation that is completely self-contained. What is important is what the legislation states rather than the form it takes from a legal point of view.

Lorraine Clifford-Lee (Fianna Fail)
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Professor O'Mahony would be happy that we could adequately put everything into the Health (Assisted Human Reproduction) Bill and have a very good framework there for international surrogacy within it.

Professor Conor O'Mahony:

Yes, I would.

Mary Seery Kearney (Fine Gael)
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Contained within the Health (Assisted Human Reproduction) Bill, there is a very definitive answer. I thank Professor O'Mahony for that. Has he seen the issues paper?

Professor Conor O'Mahony:

No, I have not had sight of that document.

Mary Seery Kearney (Fine Gael)
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I am really shocked by that. I ask that we would discuss publishing the paper because it is important. It has been in the public domain in certain limited places with certain groups I know of. One of these groups wrote a public letter that addresses where the issues paper points out problems with Professor O'Mahony's report. It is only reasonable, therefore, that once he has sight of the paper, we hear from him again. I propose that before the end of this, he has the opportunity to come back and address us because it seems unfair that there is an issues paper that points out difficulties with the report that are disputed very strongly by advocates in this area and Professor O'Mahony does not get an opportunity to address that. I think that is quite shocking.

One of the things that came up when Professor O'Mahony appeared before the Joint Committee on Children, Equality, Disability, Integration and Youth was the idea that we need to have retrospective provision. At that meeting, I said that we are hoping here for a very ethical gold standard when it comes to international surrogacy. Naturally, the retrospective cases will not achieve that standard. Does Professor O'Mahony support them being ring-fenced and dealt with specially? They did not do anything unlawful and pursued IVF in as ethical a manner as they could and some had the benefit of laws and knowledge of what to ask for while others did not. How does one distinguish between those two groups?

Professor Conor O'Mahony:

That is an important point. The short answer is that the Senator is correct that we cannot apply the same rules to the retrospective cases simply because it would not be reasonable to expect people to have complied with very detailed standards that did not exist and which they could not possibly have known about. In a similar way to how the Children and Family Relationships Act currently does that, where it has a separate process for retrospective recognition as distinct from future cases, my report recommends that we would have a different process around retrospective recognition of surrogacy arrangements with slightly modified criteria to reflect that. For example, the provisions on whether or not an identifiable donor was used would be softened for retrospective cases because it makes sense to try to build in the strongest protection for the right to identity for future cases. When people know that, they will then use an identifiable donor and comply with that provision. It would not make sense to penalise people where family relationships already exist and there are people caring for a child who happened to use an anonymous donor because there was no law on the point at the time. There are specific proposals in the report about the criteria that would apply for retrospective versus prospective recognition of surrogacy and the Senator will see that there are some slight alterations between those criteria to reflect the fact that we cannot expect people to have done things they could not possibly have anticipated.

Mary Seery Kearney (Fine Gael)
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I note Professor O'Mahony's comment. I wish to emphasise that just because something is difficult is not a reason to do it. One of the reasons we heard this morning was that the numbers are very small, to quote from the statement that will be published at the end of the meeting. Actually we cannot quantify the numbers because we only know the numbers based on those who applied for an emergency travel document whereas same-sex couples who go to the US or Canada do not require an emergency travel document. Therefore, we cannot quantify those numbers. Could Professor O'Mahony confirm that?

One of the words that was used about parents is that this is emotional. It is not; it is a very legal reality. There are children who have no succession rights because they are legal strangers to the person who was there long before they were born and throughout the pregnancy and who will be there for the rest of their lives.

Professor Conor O'Mahony:

It does not matter how small the numbers are. The rights to a family relationship, family life and identity are individual rights. They inhere in every individual child and are not dependent on a critical mass.

Jennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I again thank Professor O'Mahony. I agree that numbers should never be an issue. One family is all it takes. We must be very mindful of that. For all of us who have been working with different families affected by surrogacy, it is important that there is better communication, particularly from the Department. I would love Professor O'Mahony to come back before us. We need to listen in respect of all the different issues that arise. I do not know if the timeframe we have will work for us because it is so short but we must ensure there is communication and that we all do what we can. This will be crucial and will affect families. We must do whatever we can to get it done as soon as possible.

Professor Conor O'Mahony:

No. I thank the committee for its engagement. It is clear that everybody is really engaged with this. I know it is very technical and it takes a long time to get your head around many of the legal and ethical issues along with other issues that arise with this so it is great to see that everybody is taking it very seriously. I wish the committee the best of luck with its work. I know there have been a few mentions of possible future engagement. That is for the committee to decide. I am happy to engage with the committee in whatever form is useful - be it in writing or at another meeting. I am at its disposal.