Mr. Brian Merriman:

The Equality Authority welcomes the opportunity to offer its preliminary observations on the general scheme of the Bill. I thank the committee for the invitation to appear. As a result of the very short lead-in time, the Equality Authority submission can only set out certain provisional observations. We are conducting a further in-depth review and will provide more detailed comments as the legislation evolves. Given the considerable detail in the scheme, it is not possible to deal with all of the provisions today. However, we appreciate greatly the opportunity briefly to highlight some key points.
The ambitious general scheme proposes a ground-breaking overhaul of the law as it applies to children and family relationships in Ireland. It addresses the increasing complexity and diversity of family arrangements in which children are being raised in modern Ireland. It acknowledges and seeks to address the fact that a diversity of people other than biological parents may play a leading role in respect of a child's upbringing. The best interests of these children require that these arrangements be recognised and supported. Broadly speaking, the authority welcomes the scheme as a significant reform.
Our submission highlights a number of issues that require careful consideration. In particular, we are concerned that the scheme makes no provision for children who are born as a result of assisted reproduction to access information on their identity and origins. Notably, the Commission on Assisted Human Reproduction in its 2005 report observed that "having access to genetic origins is potentially of profound importance for people's understanding of their identity in a psychological, genetic and historical context". Given the acute problems experienced by adopted people in this regard, it is recommended that the scheme should expressly ensure that all children at an appropriate age have access to information allowing them to identify their genetic origins.
The authority is also concerned at the exclusion of traditional surrogacy from the scheme. This involves circumstances in which the surrogate mother uses her own genetic material in the pregnancy. An arrangement involving the use of the surrogate's own eggs is arguably simpler, safer and more likely to result in pregnancy. It is also less likely to give rise to ethical complications in that the number of potential biologically connected persons will be fewer than in the case of a surrogacy arrangement other than a traditional surrogacy. This exclusion could be reconsidered.
Given the risk of the commercial exploitation of women, the focus in the scheme on altruistic, non-commercial surrogacy is to be welcomed. The authority, however, queries the imposition of certain other restrictions in respect of the surrogate. The scheme requires that a surrogate mother must be at least 24 years of age at the time of the surrogacy arrangement. Given that the age of majority is 18, it is unclear why an elevated and potentially discriminatory minimum age has been chosen in this specific context for a woman to become pregnant. Notably, there is no such minimum age imposed on a male donor of genetic material. Why should a woman be deemed insufficiently mature in making a decision of this nature prior to the age of 24 when she can make all other important, life-changing decisions from the age of 18?
The requirement that a surrogate must already have given birth to at least one child that is in her care will also preclude many women who may for altruistic reasons wish to assist another woman in having a child. This involves a surrogate making decisions to restrict the kinship of her first child. This condition may need to be re-evaluated. The authority also recommends that some consideration should be given to making pre-birth judicial arrangements in respect of surrogacy to ensure there is clarity and certainty around the legal responsibilities and rights of all parties as early as possible and prior to the birth of the child.
The authority has previously noted that the language around children's well-being could be less custodial. We welcome the provisions expanding the range of people who may seek guardianship or custody of a child and proposed improvements to availability of access. We recommend, however, the adoption of a broader definition of the phrase "relative of the child" in head 31 of the scheme to include the relatives of a spouse or civil partner of a parent in the category of those who may apply for custody and access. We also recommended that, subject to certain limited exceptions, all fathers of children born inside or outside marriage should have automatic guardianship responsibilities in respect of their children. The Law Reform Commission has endorsed this view. The scheme proposes to extend automatic guardianship to a category of unmarried fathers who have been cohabiting with the child's mother for at least 12 months before the child's birth, ending no earlier than 10 months before the birth. It is arguable that this timescale does not go far enough and arbitrarily excludes from automatic guardianship many unmarried fathers who play a vital role in the raising of their children, including those who commence cohabitation with the mother after the pregnancy or the birth. While unmarried fathers will still be able to acquire guardianship by court order and by agreement, we submit that further consideration is required of the circumstances in which fathers are given automatic guardianship so as to ensure that fathers are not arbitrarily excluded from automatic guardianship.
We welcome the introduction of mechanisms to ensure parenting orders work effectively and expand the range of persons who may be required to maintain a child. We also welcome the significant amendments to civil partnership law that will, if implemented, ensure that the interests of children of civil partners are properly considered and vindicated in civil partnership proceedings. These measures will eliminate the most glaring remaining gaps between civil partnership and marriage and greatly enhance the position of a child being raised by civil partners. We are pleased also to see proposals to extend joint adoption to civil partners. Given that gay and lesbian people may already adopt as individuals, allowing for joint adoption by civil partners is a logical step forward which will provide greater stability for a range of children living with same-sex couples. While welcoming this step, the authority notes that the proposals exclude unmarried couples from adopting as a couple. While marriage and civil partnership in many cases will provide greater stability for children, we question whether a blanket ban on unmarried couples adopting jointly is appropriate. The UK House of Lords has invalidated a similar blanket ban in Northern Ireland on joint adoption by unmarried couples as being contrary to the European Convention on Human Rights. Similarly, we question the wisdom of excluding all unmarried couples from joint adoption regardless of their circumstances.
We recommend that the option of second-parent adoption be considered in respect of children being adopted by a parent's spouse or civil partner. At the moment, both the parent and spouse must adopt the child together. Provision should be made to allow the spouse or civil partner of a parent to adopt the child without requiring the spouse or civil partner who is a parent either to extinguish her responsibilities or to have to adopt the child alongside the new parent’s spouse or civil partner.
Finally, the authority has recommended that provisions and protections under the Adoptive Leave Acts should be extended to at least one commissioning parent in a surrogate arrangement. The scheme should set out expressly the qualifications required by a person serving as guardian ad litemin respect of a child.