Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 40:

In page 32, line 36, to delete “or well-being”.

I proposed to discuss amendments Nos. 40 and 41 together. These arise out of the discussions on Committee Stage and refer to the circumstances where a donor may seek to have his or her identity kept from a donor-conceived child. This gave rise to some concern that the identity rights of the child would not be properly safeguarded. In light of those discussions, I have decided to further refine the provisions, and amendment No. 40 removes the reference to the "well-being" of the donor or donor-conceived child being affected. This is too subjective a threshold, and a number of Deputies spoke about this on Committee Stage. I am clarifying the highly exceptional nature of any decision to withhold donor information by providing that the information can be withheld only when it would affect the "safety" of the donor or the donor-conceived child. I should stress that I consider it highly unlikely that information will ultimately be withheld on this basis but I consider it essential to ensure that the Minister for Health or the authority to be established has some means of dealing with any truly exceptional circumstances which may arise.

Amendment No. 41 makes further associated provision by clarifying that the Minister will have the scope to provide a donor-conceived child with the reasons for refusal. If he does not, the court will be able to consider the contents of any representations made and determine whether, in the circumstances, the donor-conceived child should be given the information. The strong presumption, as I mentioned to Deputy Shortall, based on the initial consents made by a donor, is that donor information will be released to a child. If the Minister so decides, and the donor objects, he or she will have the usual right to apply to the courts for a review of that decision.

We had much discussion on Committee Stage about the terms and what may be exceptional circumstances. In order to really make it clear that we see this as something extremely unusual and an exceptional circumstance, I was advised, legally, that I needed to include an exclusion in case there was a circumstance where the information would compromise the safety of the child. I was advised that we should have this provision. Even in the case of refusal, there is a right of appeal to the court. The donor-conceived child or adult can go to court, which can obtain the information and make a determination in the usual way.

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