Mr. Brian Tobin:

I thank the Chairman and members for inviting me to offer a legal opinion on certain aspect of the heads of the children and family relationships Bill. I am a law lecturer at NUI Galway.
I suggest head 10 of the Bill, when read in conjunction with head 2, may, in fact, be constitutionally infirm. The Bill is unclear as to whether it applies to assisted reproduction that takes place only in a clinical context or if it also applies to assisted reproduction that also takes place in a non-clinical setting such as self-insemination or "home insemination". The reason this poses a problem is that where there is home insemination, there is no formal procedure by which a known sperm donor father, for example, may waive parental rights prior to a lesbian couple proceeding with self-insemination. Therefore, the known donor can be ousted from playing any parental role in respect of the child without ever having formally waived parental rights. It appears that the Bill is attempting, although I may be incorrect, to abrogate the decision of the Supreme Court in McD v. L, whereby it recognises that a known donor is akin to any other natural father. If that is not the intention of the Bill, I propose that the Oireachtas change some of the language used in the Bill to ensure, similar to the points made, certain things are given a proper definition at the outset. I strongly encourage that the procedure be defined in the Bill because, to my mind, it is arguable that self-insemination is a procedure that results in, to use the language used in the Bill, or leads to implantation of the embryo.

Self-insemination initially results in fertilisation and eventually implantation but legally interpreting the Bill it does result in or lead to implantation. That is why I feel the Bill covers the self-insemination scenario whether that is the intention or not. The reason I believe this makes the Bill constitutionally infirm is that even in the absence of Article 42A and the child nonetheless has constitutional rights, the child has, to quote Mr. Justice Walsh in G v.An Bord Uchtála, natural rights to be supported and reared by its parent or parents who are the ones responsible for its birth. Arguably a known sperm donor father is responsible for the child's birth. Also Article 7.1 of the United Nations Convention on the Rights of the Child provides that the child shall have as far as possible the right to know and be cared for by his or her parents. If we are to oust the known donor prior to the birth of the child and prevent that person from applying for rights of guardianship or access we are, perhaps, denying the child its fundamental constitutional rights. Arguably, if Article 42A is inserted, what may be a natural and imprescriptible right of the child to at least know and possibly have the society of its father is a concern in respect of the Bill as it currently stands. However, if the Oireachtas wishes to exclude the known-donor scenario I would strongly encourage that the language in Head 10 be changed and that a definition is given for what is meant by "procedure" in the Bill, that it is referring to a clinical procedure.
If the Bill is regulating and abrogating the decision in McD v.L then it will favour the intention-based parental status model or the intentions in the example of the lesbian couple a family unit that is devoid of constitutional protection over the constitutionally protected and, perhaps, soon expressly constitutionally protected rights of the child. While the use of the language "natural and imprescriptible" rights, may be unfortunate in Article 42A, nonetheless the use of the word "natural" does imply that a child has rights in relation to those from whom he or she naturally results, that is, his or her biological parents. Geoffrey Shannon has pointed out that the use of the terms "natural and imprescriptible" seem to allow for the natural law of philosophy to be used in the interpretation of rights under Article 42A. I would encourage the Oireachtas to reconsider head 2, which deals with interpretation, and head 10, which deals with parentage in assisted reproduction cases, other than surrogacy. If the Bill sees to oust the known donor it may be constitutionally infirm.
Head 2 defines conception. Conception is deemed to have occurred when the procedure was performed that resulted in the implantation of the embryo. Self-insemination is arguably a procedure that does result in implantation. Under head 10, the child's birth mother and a person married to, in a civil partnership with or cohabiting with her, and who consented at the time of conception, at the time of this procedure, to becoming a parent of the child will be the child's other parent. One might say having consented at the time of conception, surely that envisages a formal consent, perhaps, given in a clinical setting. Not so, because head 10(6) provides that unless the contrary is proven, a person is presumed to have consented to be a parent of the child, simply by virtue of the fact of being in a marital, civil partnered or cohabiting relationship with the child's mother. Again, that clearly encompasses the self-insemination or home insemination scenario if consent is going to be presumed. There is much evidence leaning towards the self-insemination scenario being covered by the Bill and possible future constitutional infirmity of the Bill.