Éamon Ó Cuív (Galway West, Fianna Fail) | Oireachtas source

The procedure is vital here because the problem is that we will never get to deal with what is in this Bill. This is the problem with the process being driven by this Government for some agenda that is hard to understand. Good process is good process, and it is good process with every Bill. If we want to see the dangers of what I would call this consensus-driven "let's get it through and let's not look at the words" approach to legislation, I can give a simple example. In everybody's rush to show goodwill towards the Good Friday Agreement, nobody examined the wording put forward in the referendum that followed the Agreement. They were two paragraphs relating to the wording of the articles that replaced Articles 2 and 3 of the Constitution. The wording stated that everybody born on the island of Ireland was automatically an Irish citizen. The Minister might remember that subsequently we had to have a second referendum - I am sure Deputy Ó Caoláin remembers it - because people who did not have any status in the UK because they were refugees or asylum seekers were coming over to Belfast overnight and having a baby and that baby automatically became a citizen of Ireland. As a result of us not thinking through the propositions, we had to have a second referendum saying, "sorry, that's not going to be the way it is and we should have looked at this the first time". That only related to two paragraphs and the Minister is telling me that there are no little issues like that in 172 sections.

The second thing that fascinated me was previous Deputies welcoming the Bill but saying that the family is defined in the Constitution as only being a marital family and then welcoming the fact that all these changes recognising all these different types of families are coming in now. The hyperbole that is sometimes used around here is mind-boggling and I accept that some of my own colleagues have used the same hyperbole. As the Minister knows, if the Constitution did not provide for everything in this Bill, she could not bring it in. Of course, the Constitution allows us to recognise that there are many types of family and that children are raised in very many types of situations. In fact, I saw a complaint in a newspaper last week by Fintan O'Toole about the Constitution not defining the family. I always have believed that, for very good reasons, the very cautious and clever drafters of the Constitution took a studied and purposed decision because they knew the complexity of families. John J. Hearne was very much involved in the drafting of the Constitution and was by all accounts exceptional. The drafters of the Constitution knew that then that, as is the case now, there are all sorts of different arrangements, situations and human realities and it was much better to leave that undefined.

The reference in the Constitution is about the protection of the institution of marriage on which the family is founded so it does not say that married families are the only families. However, it does say that, in general, stable marriage contributes to society, everybody's good and, in particular, very many happy homes for very many children. Most of us would accept this as a general principle. It does not say and it does not mean that in all sorts of other circumstances, other arrangements do not give very good outcomes for children. It just says that marriage is an important institution. If it was not an important institution and if the Government did not recognise the importance of it or think it was of any consequence in society, the logical and simple thing for it to do would be to abolish marriage as a civil concept because it would not be of any importance. Of course, the Government knows that irrespective of religion or no religion, every society sees the commitment of people to each other as being of fundamental importance.

Unfortunately, I have not had the time to go through the 172 sections because there were many other things to be done over the weekend. I believe that, in general, everything here in terms of adoption and so forth should be welcomed. An issue has been raised that the Minister might explain. My understanding is that, at the moment, there is a qualifying word relating to single people adopting. In other words, we provide for single people adopting but there is a qualification relating to the particular circumstances. I have no problem with that being extended to same-sex couples but I am curious as to the reason the word "particular" is taken out. I accept that this can be very much the preferable solution in cases but I understand, under the current situation in law, all things being equal and allowing that there are no particular circumstances that favour a single person, which we are now extending to same-sex couples, the presumption is that a heterosexual couple is favoured. Why are things being changed, all things being equal, and I am saying "equal" because there are all sort of circumstances where they would not be equal? It is fair to say that many people would question that. This is not to say that, when one takes in individual circumstances, one would not wind up with either a single person or a gay couple adopting but it says that all other things being equal, a heterosexual couple would be favoured. I am wondering how that fits in with the protection of the institution of marriage in terms of the Constitution. These are the kind of little issues that need to be teased out.

I received a rather complex e-mail the other day from a single father who welcomed guardianship rights for fathers but raised all sorts of technical issues with me that, again, need teasing out. His view was that guardianship should not be automatic but that the father should be able to apply for it. In other words, for technical reasons, he was against automatic guardianship for all fathers because he believed that if they have not shown any interest, they should not automatically get something they have shown no interest in. This is interesting because it was not coming from the side of the argument one would necessarily expect it to have come from. Again, I would like to see all these things teased out because, as we know, sometimes when ones solves one problem, one creates another. I have not had time to look into exactly what has been proposed here and the issue this person raised. I am sure that over the coming week, and the problem is that it is only a week, now that the text of the Bill is available, many other groups on every side of the debate will come forward and say that the balance is not quite in the right place and that it should be shifted.

The issue of donor-assisted reproduction arises in this Bill without us knowing the answer to a question that is fundamental.

In 90% of cases, assisted reproduction involves a man and a woman who provide the genetic material required to become the parents. They are not the people about whom I am speaking. In cases of sperm donation and cases in which a man wants a child but does not have a female partner, we are into the realms of surrogacy. Many countries across Europe have in place restrictions or a ban on surrogacy. As a TD, I would like to think this one out carefully. There are many issues that need to be teased out. It is not simple. Is it right - I do not know - that a woman in this country or any other country be paid commercially to carry a baby? Is it right to commercialise vulnerable women in this way purely for financial gain? Is it right to expect them to sever all ties and have no attachment in life to the child that may or may not be of their genetic material? That is a debate we need to have. As I said, many of the major European countries have chosen not to go there.

Another issue that arises is that of relationships in which a family member is used as a surrogate. There have been some very interesting cases in this regard. I was on a radio programme the other day during which I listened to a case raised with Pat Kenny, which brought to mind the old saying: "If your father's son was my father's daughter," and the games we used to play as children, because the mother turned out to be the child's aunt and so on. This is a hugely complex issue. While the number of cases of surrogacy will be few, we will need to regulate this area. I do not understand why we are not addressing that issue within this Bill because, as I understand it, it has an impact on some of the provisions of this Bill.

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