Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein) | Oireachtas source

The Bill is welcome and long overdue. I take this opportunity to commend the Minister on its introduction. Much of the Bill is without controversy and has been long awaited. It represents a major change to family law in the State. For many families it will bring legal recognition in line with reality. It is a very substantial piece of legislation which spans 170 sections, relating to the extension of guardianship, custody and adoption rights to different types of families. Importantly, it refers to the best interests of children and allows for increased guardianship for unmarried fathers and increased rights for grandparents.

It must be noted that while it is very important for so many families throughout the State, the Bill will result in no change for the majority of families. The Bill will enable civil partners and cohabiting couples who have lived together for three years to jointly apply to adopt, something they can do individually at present. It will also allow one member of a same-sex couple to be eligible for adoptive leave. Where a spouse or partner has lived with a parent for three years and looked after a child for two years, he or she will be able to apply for guardianship or custody. The legislation will allow a relative of a child to apply for custody if he or she has looked after the child for 12 months where no guardian is able or willing to do so. Unmarried fathers will be given automatic guardianship rights if they have lived with their child’s mother continuously for a year, including for three months after the birth.

Some of the more controversial aspects of donor-assisted human reproduction, DAHR, are being addressed - namely, the ending of anonymous gamete donation. This will allow all children conceived in this manner to trace their genetic identities. The Bill provides for the establishment of a register through which all children who are born via assisted human reproduction will be able to trace their donors. I will return to this later.

I will focus mainly on the elements that relate to assisted human reproduction, on which there are some issues that I wish to have clarified. I believe some of the provisions in the Bill require amendment. I hope the Minister notes these and, if she accepts the points, that she will address them on Committee Stage. The first of these is on father's rights. We would like to see the establishment of a central register for statutory declarations for joint guardianship and a change to the provision to which I referred that requires an unmarried father to live with the mother, as this might not be practical in all cases. I know of such cases in my community, and this fact requires an amendment to the Bill. What is required is that the father has lived with the child's mother continuously for a year, including for three months after the birth of the child. It could also be argued that this discriminates against the less well off in our society, for whom the prospect of living together may be but a far-off ambition.

If the Minister wishes to explore the matter with me, I could instance real cases that I am familiar with.

The Bill sets out a national donor-conceived person register to allow children conceived in this way access to his or her identity. This is fair and just. It also sets out obligations for donor-assisted human reproduction facilities, parents and donors as well as information that will be required for the register.

Section 5 deals with parentage in cases of DAHR and sets out the position on the legal parents of a child born through DAHR. The birth mother will always be a parent of the child. The child's second parent will be the birth mother's spouse, civil partner or cohabiting partner if the birth mother and that person consent in advance of the birth.

Section 6 outlines the procedures that will apply to the consent of a donor of a gamete. This is a necessary provision. There are also provisions whereby donors can direct their gametes to a specific couple. Sections 7 through 16 deal with other elements around consent, the revoking of consent and information to be given relating to DAHR procedures.

Section 17 has an important provision that will make it unlawful to become a donor for financial compensation beyond reasonable expenses. It will, however, be possible for the donor to be refunded for any reasonable expenses that may arise from making the donation. It is important that becoming a donor is not commodified and I believe the House is of one mind in this regard.

Section 18 relates to retrospective recognition of parentage of certain donor-conceived children born before the commencement of this part of the Bill. It applies to any donor-conceived child born in the State following a DAHR procedure carried out in a clinic or hospital in the State or in a DAHR facility outside the State. The second parent must be able to demonstrate that she or he knew at the time of the DAHR procedure that she or he intended to be a parent of the child. The donor must be unknown to the birth mother or intending parent. In this case an important question is almost invited. Why would or must the donor be unknown to the mother? What of parents who had the aid of an extended family member or friend? There is an absolutism here and I am somewhat unsure that it is as it should be. Again, I would be inclined to revisit the matter on Committee Stage. Section 19 outlines the District Court procedure that will apply where a declaration of parentage is sought in respect of a donor-conceived child born before the commencement of this part.

Part 3 deals with DAHR. Section 23 sets out the obligations on a DAHR facility and states:

A person shall not perform a DAHR procedure unless the person is—

(a) a registered medical practitioner, or

(b) a registered nurse.

This section appears to preclude what could be termed DIY or do-it-yourself donor-assisted human reproduction, a practice that, as the Minister is aware, currently occurs. Can the Minister clarify whether this is the case? What does she know of these instances? What of those who have decided to go this course already? Will any provision be made for them? Certainly, there are cases such as those I have referred to. What does the Bill mean for them?

The remaining sections deal with information required by DAHR facilities, the regulation of such facilities and the establishment of a register for those conceived by DAHR. They deal with access to the register, what information may be released and to whom as well as clarification that counselling has been received prior to this information being handed over.

Like many other Deputies, I imagine, I have been contacted by some working in DAHR clinics who have what appear to be valid concerns about certain aspects of the Bill. I will outline some of these concerns. They are concerned that current patients will be retrospectively punished by certain sections. While they recognise that allowances have been made for certain groups of patients, they believe there are other groups for whom no provision has been made.

The first such group consists of patients with anonymous sperm donors selected, paid for and currently in storage in Irish clinics awaiting use in treatment. Should there not be some consideration for these patients in order for them to complete their treatment cycles? I understand that in the region of 600 to 700 patients throughout Ireland will be prevented from completing their initiated treatment following the enactment of this legislation. One possible solution might be that the initiation of new anonymous treatment cycles could be precluded from the date of enactment rather than the retrospective application. A transition period of 12 months from the date of enactment to allow these patients to complete their treatment cycles could be allowed as well. There are options in this area and I appeal to the Minister in this regard given the circumstances and on behalf of those who will clearly be severely and seriously impacted.

The second group consists of patients entering into anonymous egg donation within the past six months whose embryos have not yet been created. It should be remembered that the egg donation process is not immediate. The process from initiation to completion can take up to six months and, on occasion, longer. This is due to the fact that following donor selection the donor may not, for medical, social or a variety of other reasons, be ready to start the process immediately. It is my understanding that numerous patients have initiated donor egg treatment cycles but the creation of the embryos remains outstanding. By enacting the legislation as is, this group of patients, who are several months into the process of egg donation, will be precluded from completing their treatment. Again, one possible solution might involve the initiation of new anonymous treatment cycles being precluded from the date of enactment. However, a transition period of 12 months from the date of enactment to allow these patients to complete their treatment cycles would be a reasonable concession. I invite the Minister to take these possible amendments on board or to make them her own. I am keen to see that the legislation is inclusive, fit for purpose and has the compassion required to respond to the circumstances that many people find themselves in. These people are dependent and hopeful that legislators will be mindful of their situations.

There is one further area in which concerns have been raised by certain DAHR clinicians. This relates to sibling treatment. The legislation allows for treatment resulting in a sibling child from an anonymous donor for a period of three years from enactment. However, if the patient has recently become or is about to become pregnant, she would have a particularly small window of opportunity for an attempt at a second child. Might it be more reasonable to allow for three years from the birth of the first child or three years from the date of enactment, whichever of the two periods is longer? Again, I commend this change to the Minister.

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