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.