Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I move amendment No. 45:

In page 69, to delete lines 1 to 4 and substitute the following:

“(2) (a) The court may waive a requirement under subsection (1) for consent from an intending parent, in the case of two intending parents, if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her, or

(iii) lacks the capacity to make a decision in that regard.

(b) The court may waive a requirement under subsection (1) for consent from the surrogate mother if she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find her, or

(iii) lacks the capacity to make a decision in that regard.”.

There has been a lot of debate in the background on these amendments in preparation for today. I will provide a rationale and then we might discuss it. Amendment No. 45 adds a provision whereby the requirement for the consent of an intending parent to the granting of a parental order may be waived where he or she is dead, lacks capacity or cannot be found. The first of these allows for the potential for an intending parent who dies after the embryo transfer to be named on the parental order, as discussed in the context of amendment No. 3. There has been a lot of back and forth with the advocacy groups. Colleagues may have been involved themselves. Senator Seery Kearney and I spoke on this and I know Deputies Shortall and Cullinane have been engaged on the matter as well. The policy intent is to provide significant judicial discretion. Representative groups told me they are concerned that when a mum with her child applies for a parental order and the intending parent, an estranged father in some cases and in the example I was given, potentially an abusive ex-partner, says they do not agree, are not dead, have capacity and can be found, that puts the mum and her child in an impossible position. The clear policy intent is that judges will be able to apply discretion when the man - it is not necessarily a man but it has been so in every example I have been given - is not willing to provide consent or the surrogate mother might say she has not been involved for ten years but a large payment would help her provide her consent and if she does not provide consent, the mum cannot get the parental order, the policy intent is that in such cases judges will have discretion to override the objections of the estranged partner or surrogate and grant the parental order.

We believed that the Bill as we have it did that because it gave the best interests of the child. We got recent advice and legal concerns stating that the constitutional strength of the relationship between the biological parent and the child is so strong that if they wanted to challenge the judge's discretion, there is a good chance they would win. Therefore, a more comprehensive piece was required. One option is to do it through Committee Stage in the Seanad. I am nervous about doing so because the Bill would have to come back to the Dáil and there is a real chance it would not be passed before the Dáil goes into recess, which we have to do. I certainly want to do that. We are putting in place parallel amending legislation which will be ready when the Dáil comes back. It just requires more detailed work. To be clear, I have had long conversations on the policy intent. This provision is being brought in as a step in the right direction such that it is clear that if that person is deceased, incapacitated or cannot be found, their consent is not required. We will address the other issues to give that judicial consent as well. We will not leave any man or woman in a situation where they seek a parental order to which they have every right and an estranged partner or surrogate who has not been involved in a very long time seeks to thwart that for non-ethical reasons. The judge will be able to grant that parental order. That is the background to these amendments.

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