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

I wish to begin by thanking LGBT Ireland and Equality for Children for their work on this Bill and the Labour Party for sponsoring it. The Social Democrats are happy to support this legislation.

While the Children and Family Relationships Act 2015 represented a significant step in the right direction for LGBTQ+ families, it was undoubtedly rife with inequalities and inconsistencies, so much so that 53% of children born to LGBTQ+ families did not benefit from it, according to research carried out by Dr. Lydia Bracken, associate professor of law in UL. The reason for this is because all same-sex couples require some form of donor-assisted human reproduction in order to conceive, yet the 2015 Act only allowed for it in limited circumstances. This included only allowing for recognition of the family unit if both intending parents were female, the child was conceived in an Irish clinic, the child was born in Ireland and a known donor was used. As a result of this highly prescriptive framework, approximately 50% of children born to female same-sex couples and all children born to male same-sex couples were excluded from the legislation.

While the Minister for Health’s amendments to the AHR Bill will address some of the issues with the 2015 Act, they fall short of what is required to provide full protection and equality to LGBTQ+ families. His amendments do not adequately address the concerns raised by Professor Conor O’Mahony, special rapporteur on child protection, in his 2020 report on donor-assisted human reproduction and surrogacy. The first recommendation in his report called for the CFRA to be amended to address a number of known anomalies. This Bill provides the Oireachtas with an opportunity to do just that and correct existing inequalities in family law. The special rapporteur also stated that legislation regulating surrogacy must ensure that the best interests of the child are the first and paramount consideration for all bodies. Professor O’Mahony cited the judgment of the European Court of Human Rights in Mennesson v. France, in which the court stated that the best interests of the child were “paramount” in surrogacy cases and “whenever the situation of a child is in issue”. Therefore, the same principle must apply to the 2015 Act. That is why I have tabled two Committee Stage amendments to the AHR Bill, which seek to enshrine this principle in the new Bill and the CFRA. I urge the Minister for Health to support both amendments in order to allow for judicial discretion in the courts. As Dr. Claire O’Connell, PhD in children’s rights and legal parentage, has pointed out, “Subjective assessments and discretionary provisions are a cornerstone of family law legislation.” As currently drafted, the CFRA and the AHR Bill are the outliers in family law.

It is worth noting that these issues with the current legislation should come as little surprise. The 2015 Bill was rushed through the Oireachtas without appropriate time for Opposition scrutiny or examination. I appreciate that the marriage equality referendum was looming, but the undermining of proper parliamentary processes when Bills are passed in a rush leads to poor legislation. We must not forget that it took five years for Parts 2 and 3 to be commenced because of typographical and technical errors. Ultimately, it was LGBTQ+ families who bore the brunt of this rushed process.

It is disappointing that the Minister for Health has tabled an amendment that would have the effect of delaying consideration of this Bill’s provisions for a nine-month period. This Bill and the AHR Bill could be progressed in tandem. Alternatively and preferably, the Minister could state his commitment to incorporate the provisions of this Bill into the AHR Bill. He did not give that commitment today. I urge him to strongly consider that approach. After all, there could well be an election during this calendar year. It will certainly happen by the end of February next year. It is not the time to put this Bill on ice. We know that that has been the case so far and that there has been an undue delay. The bottom line is that LGBT+ families simply cannot wait any longer.

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