Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I would like to send good wishes to the Minister, Deputy Stephen Donnelly, for a speedy recovery.

The Social Democrats support this legislation. I hope there will be an open approach on Committee Stage and on Report Stage in terms of taking on board proposals and suggestions from the Opposition.

For far too long, assisted human reproduction practices in this country have remained unregulated. That has been very problematic. Responsibility for the provision of services has, in effect, been outsourced to the private sector. It has been 17 years - a long time - since the publication of the report of the Commission on Assisted Human Reproduction, which, among other things, recommended that a child born through surrogacy should be presumed to be that of what are termed the commissioning parents. In the intervening years, there has been no legislative response at all, making Ireland the only EU state with no specific legislation governing the area.

This abdication of responsibility has forced many heterosexual couples, LGBTQ+ couples and single people into the commercial fertility sector. It has also meant that many couples and single people can no longer aspire to parenthood. A public model of fertility care is really long overdue but the roll-out of this has been dogged by a delay after delay. This lack of urgency has meant that Ireland remains what many people have referred to as a laggard in this regard and reinforces the perception that such treatments are reserved only for those who are better off.

From a legislative perspective too, though, I will make the point that it is highly unsatisfactory that there has been such a long gap between the heads of the Bill being produced, pre-legislative scrutiny taking place and then the draft Bill being published. It is really unsatisfactory. That goes back so many years that very few people who will be dealing with the Bill now in this Dáil would have been involved in the pre-legislative scrutiny. That is completely unsatisfactory and goes completely against the whole intention of the greater scrutiny and pre-legislative scrutiny process itself.

From the outset, we all recognise the most glaring omission from this legislation, which is the issue of international surrogacy. Section 50 states that "a surrogacy agreement is a permitted surrogacy only where the surrogacy is a domestic surrogacy", thereby failing to recognise international commercial surrogacy arrangements. I fully appreciates that the new all-party committee has been established to look at the whole issue of international surrogacy and make recommendations. The reality is that many parents and children have been left in a legal limbo. Understandably, when there was the option to participate in international surrogacy, many people availed of it but they have been left now in a legal limbo. In many ways, that is unforgivable and has raised some of the most fundamental issues and questions for those families concerned, both for the parents and also for the children. I certainly urge the new committee, while wishing it well and hoping it will complete its work in the timeline outlined, to acknowledge it is really important that as well as making recommendations on policy with regard to international surrogacy going forward, there is a real urgency about addressing that legal limbo in which so many existing parents find themselves along with their children.

Those legal gaps need to be addressed as a matter of urgency.

Section 50 states that "a surrogacy agreement is a permitted surrogacy only where the surrogacy is a domestic surrogacy". As I said, that fails to recognise the whole question of international commercial surrogacy arrangements. I completely accept the legal and ethical difficulties associated with this matter. It is regrettable that we are debating this legislation in the absence of provisions relating to international surrogacy. Like other speakers, I would ask the Minister of State to give a commitment. While this is urgent and while we need to see this Bill passed as quickly as possible, it just will not work for us to take Committee Stage in the absence of the report from the all-party committee that has been established. I would like confirmation that we will await the report from that committee and that we will take its recommendations on board. That is important. It will obviously be a further delay. Again, people will have to remind themselves of all the issues involved. It is by no means the ideal way to progress legislation. However, I would like a commitment that as soon as the all-party committee has completed its work that we will then proceed to schedule the Committee Stage debate relating to this legislation.

As stated previously, the gaps in the legislation have been well flagged. They could not have taken the Government by surprise. The special committee was needed to consider this issue and to make recommendations. This should, of course, have been done long before the Bill began its passage through the legislative process, and not concurrently with it. Notwithstanding this peculiar situation, I would like to make some points in respect of international surrogacy. I am in favour of the altruistic model provided for in the Bill, but that does not mean that we can ignore the reality of commercial surrogacy in other jurisdictions. Even if we provide for domestic surrogacy, it is widely accepted that some people will continue to seek services outside Ireland. Whether we agree or disagree with practices in other jurisdictions, we must protect the rights of children who are born in this way and we must protect the rights of parents.

The whole area of children's rights is a major element in this. It continues to be a major consideration. In 2020, the Government requested that the special rapporteur on child protection, Professor Conor O’Mahony, would examine the implications of donor-assisted human reproduction and surrogacy for children. This report, which was submitted in December 2020, recommended immediate and comprehensive surrogacy legislation to deal with both domestic and international surrogacy. Notwithstanding this recommendation to provide for both instances, Professor O’Mahony raised a caveat by stating that domestic arrangements should be incentivised. I support that. He also recommended that international surrogacy should involve a genetic link between the child and at least one intending parent to act as a safeguard against the sale and trafficking of children. That is sadly a reality in a number of different countries. There are indications that the trafficking of children is even on the increase. As a result, we always have to bear in mind that there is huge potential for the sale and trafficking of children, which must be avoided at all costs. These recommendations were made on the basis of two principles: first an acceptance of the reality of surrogacy as an international phenomenon and, second, the best interests of the child. In respect of the first principle, he pointed to Ireland’s legal obligations to comply with the minimum requirements of the United Nations Convention on the Rights of the Child and with the European Convention on Human Rights. For example, Article 8 of the European Convention on Human Rights requires states parties to provide a pathway to legal recognition of parent-child relationships arising from international surrogacy in all cases that involve a genetic link between the child and the parents. This is an obligation that we have yet to honour.

With regard to the second principle, which is the best interests of the child, he points to certain inalienable rights. These include a child's right to family life, identity and non-discrimination. These rights must underpin this debate. We may want to prohibit commercial surrogacy, and we should certainly do that domestically. However, it would be remiss of us to ignore the availability of international surrogacy. The best interests of the child should be our primary consideration, as should the special joint Oireachtas committee. I have no doubt that it will be.

Other concerns have been raised regarding the proposed provisions relating to domestic surrogacy. Section 62 only provides for the regulation of gestational surrogacy where the surrogate mother is genetically related to the child. It does not provide for traditional surrogacy where the surrogate's egg would be fertilised. While I appreciate the fears that traditional surrogacy could be more unstable than non-genetic arrangements, it seems to be the case that international evidence does not support these concerns. In the UK, for example, more than 50% of surrogates carry using their own eggs. In New Zealand, the figure is 60%. Research has shown that these arrangements are not any more unstable than non-genetic arrangements. Crucially, though, the omission of this approach from the legislation would exclude single people and couples who cannot produce sperm or eggs from surrogacy. These are important questions that need to be addressed. I hope that the Minister will address these issues on Committee Stage, because many people find it difficult to understand why that particular form of surrogacy has been omitted.

The exclusion of traditional surrogacy is somewhat perplexing in light of the provisions in sections 63 and 64. My understanding is that traditional surrogacy arrangements are not provided for in the proposed regime. That is my understanding of it. I would like clarification on the matter. The reason for that is to ensure that surrogates have no genetic connection to the child. However, the Bill states that at birth, gestational surrogates will be the legal mothers and that the intended parents will need to apply to the court to seek a parental order. The assumption is, therefore, that the woman who carried the baby will be the legal mother. Then action must be taken on the part of the intended parents, who have to apply to the court to seek a parental order. The surrogate mother must consent to this transfer. This can only be waived if she is either deceased or cannot be located. This process would be completely understandable in the case of traditional surrogacy where the surrogate is the genetic mother, but it is less so in respect of gestational surrogacy. As the lecturer in child and family law, Dr. Brian Tobin, recently wrote in the Irish Examiner, one would be forgiven for thinking that this regime had been designed to make domestic surrogacy as perilous an undertaking as possible for Irish intended parents. While the international evidence indicates that the vast majority of surrogate mothers do not see themselves as the mothers of the children they have gestated, I am not certain that this provides sufficient reassurance to intended parents. This restrictive approach and the degree of risk certainly raises questions about this entire approach. It could result in disincentivising intended parents from availing of surrogacy in Ireland and, in turn, incentivise the very thing the special rapporteur on child protection warned against, which is international surrogacy.

Part 8 deals with the establishment and role of the assisted human reproduction regulatory authority. One of its most important functions will be the approval of surrogacy arrangement applications. This is a vital and much-needed role, primarily to ensure the proposed surrogate is suitable and not subject to any form of exploitation. A point made in some submissions on the general scheme of the Bill is that the surrogate is the most vulnerable party in any arrangement, bearing the negative emotional, physical and lifestyle risks of pregnancy. Therefore, her health and well-being needs to be central to any decision. Separately, given the pace of change and development in assisted human reproduction practices, it will be crucial that this authority be adequately resourced and staffed, not only to ensure the appropriate ethical and scientific oversight of proposed research and services but also in order that it will have teeth to intervene in disputes and handle complaints. Finally in respect of the regulatory authority, I urge the Minister to ensure that patient voices be represented strongly. Integrating the lived experience of people who have undergone fertility treatment into the regulatory process will be important, not least in the early days of the authority.

Aside from the provisions of the Bill, I raise one further issue with the Ministers of State. As I have previously said, the introduction of these services needs to be accelerated and I hope this legislation will be enacted speedily. It has been almost five years since the previous Cabinet approved the draft legislation. It took a further two years for the current Minister's predecessor, Deputy Harris, to publish details of the model of care for fertility, yet little progress has been made for many people. This is despite an assurance from the then Minister that publicly funded IVF services would be available in 2021. Not even the first phase of the three-stage model-of-care plan has been completed. While it is certainly welcome that four of the six regional fertility hubs are now operational, these hubs do not provide IVF, sperm donation or surrogacy services. They deal only with tests, diagnostic surgery and some non-invasive forms of assisted reproductive technology, thereby excluding single women, female couples and male couples. For those who can avail of fertility services in these hubs, the HSE's target maximum wait time is six months. In view of the current staffing situation and waiting lists throughout the health service, it is difficult to see how this target can be met. Furthermore, many female patients simply do not have time to wait because time is of the essence, as we know, particularly if they want to avail of less invasive or complex fertility services.

We all accept that a number of complex medical, ethical and legal considerations are associated with the provision of assisted human reproduction services. This issue raises difficult questions, but many people have suffered significant emotional and financial turmoil while successive Governments have grappled with the issue. Some have been forced to find services elsewhere, suffering losses abroad, while others have accumulated substantial debts. This cannot be forgotten, and I urge the Minister to expand supports for those who have fallen between the cracks. Given the costs and the emotional toll associated with assisted human reproduction, simply covering the costs of medicines falls far short of what is needed. We cannot continue to ignore and export our problems. Ireland has changed and our systems must respond. Women are spending longer in education and pursuing careers in far greater numbers. Same-sex marriages have been legal since 2015. The Gender Recognition Act was passed in that same year. These are just some examples of the changes that have occurred while our system has lagged behind. It is time it caught up with the realities of modern life. While an improvement in bringing forward this legislation is heralded, it does not address the entirety of the issues concerned. I hope the Minister will have an open mind when it comes to enhancing the legislation, not only in terms of incorporating the recommendations of the cross-party committee but also by having an open mind in listening to the proposals from the Opposition and taking on board amendments.

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