Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

-----in the Department of Justice and Equality, without whose support, enthusiasm, commitment and expertise the heads of the Bill which were published on 31 January 2014 would not have been published. They did sterling work when confronted by a Minister who furnished them with a draft Bill. They went on a global tour of various jurisdictions, both within Europe and outside, including Canada, Australia, New Zealand, the United Kingdom and the United States and examined their legislation with a view to identifying the best legal architecture to address the various issues with which the Bill deals.

There is much in the Bill about which I am enthusiastic and fully support. The central issue in all of this is the best interests of children. One of the central tenets in the drafting of this legislation when I was Minister was to ensure that the terminology and the rights of children contained in the constitutional amendment which was accepted by the people were reflected in the philosophy and wording of the legislation.

There are differences, however, between the Bill as now published and the scheme of the Bill or draft Bill published in January 2014. It was always anticipated that there would be differences. The Bill published initially was published for a consultative process, and it was subject to this process for many months. The Joint Committee on Justice, Defence and Equality held hearings. I am familiar with many of the submissions on the Bill received up to my time as Minister and with those seen by members of the committee.

I want to be unequivocal in welcoming the fact that the Bill is before the House. However, I have some concerns over the manner in which it has evolved, how some issues that should be included in it are now not covered and about the turnaround in the architecture, which has no doubt resulted from the engagement of the Office of the Attorney General. I agree with other speakers that the legislation originally drafted envisaged that the Guardianship of Infants Act 1964 would be replaced and that all the law relating to guardianship and custody of, and access to, children would be contained in this Bill. The Bill is unnecessarily complex. The 1964 Act, amended not just by this Bill but in other legislation, is being left in place. For the life of me, I do not understand why we are retaining in law arcane provisions incorporated into the 1964 Act by the Houses of the Oireachtas that simply reflect provisions that were in the Guardianship of Infants Act 1886, enacted by the UK Parliament, and that have long since ceased to have any relevance in this Parliament.

I am also concerned about the update of what are known as the presumptions. We have presumptions of paternity in our law. I changed those in the draft legislation to presumptions of parentage, and they had a number of purposes. There is no unique way of reforming legislation. There are always alternative ways of achieving the same outcome. However, by removing the new parentage presumptions, it seems a situation is being created whereby all parents or couples in this State who conceived and had children born as a result of assisted reproduction by donor prior to the enactment of this legislation would, in order to secure their parentage rights, be required to make a court application. That is my reading of the Bill but I am open to correction on that. As originally framed, the legislation created certain presumptions. It certainly allowed for a court application where a dispute as to parentage arose. Where there is no dispute, the presumptions would have applied and the formula adopted was one that had worked successfully in a series of other common law jurisdictions. It was not unique; it was looking at what had worked in practice elsewhere.

I want to say something in particular about the area of assisted reproduction. The legislation is essentially concerned with assisted reproduction provisions where there is third-party donation. I refer to where an embryo is created by a couple's sperm and ova but where they need the assistance of what I would describe as assisted reproduction. The Bill does not appear to address the particular circumstances where the reproductive material derives from the couple themselves, the husband and wife or the cohabiting couple. It is confined to dealing with assisted reproduction by donor. Indeed, there are 36 sections in the Bill dealing with assisted reproduction and many of them comprise a very important step forward. I welcome many of them. I would be interested in knowing, in relation to the issue of the register that is to be established, what research has been done that will ensure there will not be a future difficulty for couples who wish to use assisted reproductive methods to have children in accessing, for example, sperm or ova by donor. A substantial portion of the sperm used in Ireland is imported from Denmark, for some reason. What engagement has there been with fertility clinics? This was an important issue. I know all the reasons we should have a register. I envisaged when this legislation was being prepared that this issue would be dealt with by the Minister for Health. During the lead-in to the publication of the heads of the Bill in January last, it was the intention. It was intended that many of the medical issues relating to assisted reproduction and surrogacy would be dealt with by the Minister for Health or Department of Health and Children and that the parentage issues would be dealt with by the Department of Justice and Equality.

Regarding the way in which the legislation has evolved, I found some of the public comment and today's press release by the Minister for Health, Deputy Varadkar, very confusing. He seems to be telling the media, who do not have the time to examine the detail of a Bill of this size, that assisted reproduction will be dealt with solely in his legislation when there are 36 sections in this Bill dealing with assisted reproduction. It is right that this Bill deals with assisted reproduction with regard to the issue of identifying parents dealing with issues of how one establishes relationships within a family. All these are extremely important matters. For some reason, however, the subject seems to have become very unnecessarily confused. It seems the only area of parentage related to assisted reproduction that is excluded from the Bill is that of surrogacy. We deal with assisted reproduction by donor with regard to couples, with regard to women residing together, and with regard to single women who use a sperm donor to become pregnant. However, what we exclude from the Bill are heterosexual couples, married or not, who commission a surrogate to give birth to a child. We exclude from the Bill gay men who may wish to have children through surrogacy.

I acknowledge these issues can be controversial. The issue of surrogacy caused a shudder within the echelons of some advisers behind the scenes when I produced the Bill for publication in January last. Indeed, it took some weeks before I could get it through the Cabinet. I predicted that there would be no major outcry or difficulty. There was none and what was in that Bill was widely welcomed.

I have a series of concerns. First, it is in the best interests of children that we address all these issues in relation to parentage. It is entirely wrong that there is a small group of children now in this State or who may be conceived in coming months through surrogacy who will in effect have their relationship to the people who are parenting them daily undetailed and unspecified, such that they will be left in some sort of legal limbo where the surrogate who gave birth and agreed she would not act as a parent to child will maintain a legal relationship as mother, and the person who is actually acting as mother, who may have donated her ova for the conception of the child, will be excluded from being the mother. I do not understand why this is not covered in the Bill and I am enormously confused by much of what the Minister for Health is saying. Today, he was asked why these issues have not been addressed and he said he did not know why it has taken so long, that it might not have been prioritised and there might have been a fear of controversy. I do not know whether that was a sideswipe at the Minister for Justice and Equality, Deputy Frances Fitzgerald, but I do not know of any controversy that arose out of the January legislation.

The Minister stated on "Morning Ireland" this morning, echoing to some degree what he said in an interview on "Prime Time" a few days ago, that all this was very complicated but that he now had permission to draft heads of a Bill. He said we may see these sometime next autumn and that there is little chance legislation will be enacted this side of the general election. He said he would provide for a legal mechanism to transfer parentage with a simple court procedure and that detailed consents would be required at all stages. He stated the welfare of the child would be paramount, that there would be no commercial surrogacy and that the birth certificate would name the birth mother until parentage transfer. He stated commercial surrogacy would be outlawed, that there would be age limitations in the area and that, if somebody entered into a surrogacy contract, they could not be forced to transfer the child if they did not wish to do so.

What I found very curious was that although the Minister has commenced a consultative process, all the issues he says will be dealt with in the heads of the Bill he hopes to publish next autumn were dealt with in the heads of the Bill I published last January, which have gone through a 12 month consultative process and on which the Joint Committee on Justice, Defence and Equality reported. I do not understand this.

There are many other issues that the Minister for Health has said he will address, and I agree with him that they should be addressed. They fall uniquely within the health brief. They are not concerned with determining the legal relationship between parents and children. They are not concerned directly with legal contracts or with court procedures. There is a range of other issues that should be dealt with and, indeed, it was my understanding that those issues would be developed during the preceding 12 months. I have no idea why they are so undeveloped.

I believe that, as there is no possibility that the issue of surrogacy and parentage will be dealt with during the lifetime of this Government, the provisions contained in the draft Bill I published, together with some appropriate amendments arising out of the consultative process, which I think was very helpful, be incorporated in this Bill on Committee Stage. It is not in the interests of children that we fail any longer to address this issue. The excuse given for not addressing it, which I heard some months ago, was because there was a Supreme Court judgment pending in proceedings relating to a matter of surrogacy with which I am familiar. I am sure other Members of the House are familiar with it also; I do not have the time to go into the detail of it. Those proceedings existed when we published the Bill last January. They were in a place whereby the High Court had made a decision, the Supreme Court's hearing was about to take place, and it was anticipated the Supreme Court would ultimately produce judgment, as it did in November of this year.

The heads of the Bill, as drafted, anticipated the outcome of the Supreme Court decision absolutely correctly. When it commenced hearing those proceedings, the Supreme Court was informed that the Government, in the context of the Children and Family Relationships Bill, intended to address this issue. The fact that the scheme of the Bill had been published, and I am open to correction that a copy of it might have been handed into court, although I may be wrong about that, could not influence the outcome of an appeal the Supreme Court was determining. It merely brought to the court's notice that the Government intended, in the Children and Family Relationships Bill, to address this issue.

By the time the Supreme Court produced its decision on 7 November 2014, it had become known that the Government was not going to address the issue in the Children and Family Relationships Bill. All the judges in the Supreme Court urged that legislation be enacted in regard to surrogacy so that no individuals should again have to go through the difficulties the husband and wife, and the wife's sister, went through in the context of the High Court and the Supreme Court proceedings that were necessary.

I want to give one quote from Mr. Justice Hardiman. He was referencing legislation in this area. He stated:

There is, at present, a serious disconnect between what developments in science and medicine have rendered possible on the one hand, and the state of the law on the other. It is as if Road Traffic Law had failed to reflect the advent of the motor car. The failure to adapt the law in relation to developments in Embryology of course, affects far fewer people, but it affects them in a peculiar and intimate fashion which makes statutory law reform in this area more than urgent.

There is no more I can say about that. I believe this Bill should be amended on Committee Stage to address parentage issues in regard to surrogacy and the court procedures that are necessary to provide protection for children and the welfare of children, and to ensure that we address the issue of commercial surrogacy. All the other issues can properly be dealt with by the Minister for Health, but I wish he would stop pretending that he is presenting some new crusade to address an issue that no one, before he came along, was interested in addressing. It is misleading, and it is unfair to members of the media and those interviewing him who do not have the intimacy of knowledge of both the Bill that was published last January and of this legislation.

I want to rapidly touch on some other issues. I have a concern about the change in the definition of "embryo", and in particular with reference to fertilisation of a human egg. The January 2014 heads had a different approach to it, and there was a reference to part of an ova. Without getting too much into medical science, in circumstances where a husband and wife want to have a child but the wife who provides the ova has a mitochondrial deficiency in her DNA, at the frontier of DNA medical science or embryology there is now possibly available a mechanism whereby a donation of 0.1% of someone else's DNA from their ova can correct that difficulty. The manner in which this legislation is now framed will create a barrier to that. The manner in which the draft Bill was framed in January last year did not create a difficulty in that regard.

We should not enact legislation which creates a difficulty in regard to a major issue of health that could impact not just on the child who might be born, but future generations derived from that child when that child grows up, and we should not create a barrier simultaneously with the House of Commons and the House of Lords passing legislation to remove a barrier that exists in their own legislation in the context of this area. I am concerned that what we are doing is copying a formula from the United Kingdom that is now proved to be out of date. That needs to be addressed.

On the issue of child maintenance, there is a provision in section 86 of the 2015 Bill which seeks to amend the law with regard to the provision of lump sums for the benefit of children. I have stated previously in this House that there was a case quite a number of years ago, preceding my time as Minister, when a High Court judge deigned to determine that the mother of a child born outside marriage could not, for the benefit of a child, seek from the courts the same lump sum payment to provide for the child's support and accommodation as a married mother could for a child born within marriage. I was outraged, as a lawyer, with that judgment. It stopped at the High Court. It could not go any further. The unmarried mother had been successful in the Circuit Court. The case was reversed in the High Court. We took a case in the European court, and the State settled the case in the European court on the basis that the law would be adequately changed.

The provision in this legislation does not reflect in full what was in the draft Bill in January last. It is inadequate, and it does not deal with the situation that could arise where, in the case of a child born outside marriage, there is a very wealthy father and funding could be provided, for example, to purchase a house in which the child could reside with the mother, and to deal in future with the ownership of that house. I am asking the Minister to revisit that particular issue.

I am conscious I have run out of time and I will not get to all the matters I wish to raise, but perhaps the House would give me one more minute to raise three issues.

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