Wednesday, 11 July 2018
Children and Family Relationships Bill 2018: Second Stage
I move: "That the Bill be now read a Second Time."
Legislatively, this is a straightforward but very important Bill. Its purpose is to correct a typographical and technical error in the Children and Family Relationships Act 2015, which will facilitate the subsequent commencement of Parts 2 and 3 of the latter. The Children and Family Relationships Act represents one of the most significant changes in family law in a generation and attempts to better reflect the reality of contemporary family life in this country. It was enacted to reform family law in a way that is inclusive of, and sensitive to, the reality of contemporary family life in Ireland and to meet the needs of children living in diverse family types.
Children are no longer raised solely in the traditional mother-father nuclear family but in a myriad of forms. For example, these relationships may be as a biological or social parent, as a guardian or as an adoptive parent. Parts 2 and 3 of the Act, for which I am responsible, recognise the new biological reality of donor-assisted human reproduction, DAHR, where children may be born to people using donor gametes and embryos. The provisions encompassing DAHR procedures relate to cases where the intending mother carries the pregnancy and gives birth to the child. As a result, these provisions apply to heterosexual couples, female same-sex couples and a single woman undergoing a DAHR procedure. As such, Parts 2 and 3 represent key elements of the Children and Family Relationships Act and their commencement is required to clarify the legal position of all parties involved in a DAHR procedure, but particularly the children born from such procedures. Being able to proceed with the commencement, once this short piece of legislation passes, will have a very positive impact on the rights of families which have sought donor assistance to conceive. It is my intention, once this Bill has been enacted, to commence Parts 2 and 3 of the Children and Family Relationships Act in the autumn. I have met stakeholders in lesbian, gay, bisexual and transsexual, LGBT, groups to convey this to them.
The Children and Family Relationships Act 2015 was originally brought forward by my colleague, Deputy Fitzgerald, who described it at the time as "a watershed in the development of family law”. The advent of DAHR arrangements has led to the birth of children who need legal certainty in their parentage and guardians. We have a responsibility to put in place a legislative framework that can provide that certainty. In addition to clarifying the legal parentage for donor-conceived children, the commencement of Parts 2 and 3 will also help to vindicate the rights of such donor-conceived children to information on their genetic heritage through the establishment of the national donor-conceived person register and the prohibition of anonymous gamete and embryo donation.
The national donor-conceived person register will house the details of the relevant donor, the intending parents and the child or children born as a result of a given DAHR procedure in Ireland. The introduction of this register acknowledges that many donor-conceived children will be curious as to their genetic origins and provides an important and safe mechanism through which they can access the information relating to the relevant donor, such as his or her name, date of birth and contact details, should they so wish. Similarly, donor-conceived children will also be able to seek and obtain information relating to other children born as a result of other DAHR procedures involving the same donor.
Another important aspect of Parts 2 and 3 of the Children and Family Relationships Act 2015, and one that has been the subject of some confusion in recent weeks, is the provisions regarding retrospective declarations of parentage. These provisions enable parents of donor-conceived children, who have been born prior to the commencement of Part 2 of the original Act, to seek a declaration of parentage through the courts. The commencement of these retrospective provisions has been the subject of extensive interest and discussion, both in media discourse and at a political and parliamentary level. I am very aware that the implementation of these provisions is particularly eagerly anticipated by the LGBT community. However, the Children and Family Relationships Act is not a panacea and does not regulate all aspects of assisted human reproduction. Much of the focus has related to matters that the Children and Family Relationships Act does not actually encompass. This Act specifically relates to DAHR procedures where the intending mother is also the birth mother. It is a really important point and I have had conversations with many Deputies and Senators, as well as members of the LGBT community, about this. There is much more we need to do in this area but it is not my intention to reopen the debate on the Act. We are fixing the error and seeking to commence the Act in full, providing the legal certainty that was intended by the Oireachtas. A very important discussion must take place at the health committee in the first instance on the assisted human reproduction Bill, and we can make very significant inroads into a number of these important matters.
It is very important to emphasise that the Children and Family Relationships Act 2015 does not encompass surrogacy. Provisions relating to the regulation of surrogacy in Ireland are included in the general scheme of the assisted human reproduction Bill 2017, to which I have referred. The latter Bill, which officials in my Department are currently drafting in conjunction with the Attorney General, will provide a comprehensive regulatory framework for assisted human reproduction, of which DAHR procedures is just a small part.
The general scheme is published on my Department website. The Joint Committee on Health review of the general scheme as part of the pre-legislative scrutiny process is still ongoing.
In my discussions with LGBT+ groups in recent days and weeks there has been an eagerness to contribute to the process of pre-legislative scrutiny on the general scheme. I hope that the joint committee can facilitate as much work as quickly as possible in that regard. We would certainly welcome the input of those groups in the report of the committee on the pre-legislative scrutiny as we continue the development of the Bill.
It is important to emphasise that this amending Bill does not change any of the substantive provisions or policy intention of Parts 2 and 3 of the Children and Family Relationships Act. We are fixing typographical errors to give effect to the provisions and policy intention debated and passed by these Houses. As I stated from the outset, the sole purpose of this Bill is to remedy a number of technical drafting issues with the original Act. This will facilitate the subsequent commencement of Parts 2 and 3 of the Act.
I will go through the Bill to outline the content of each section. Section 1 provides that the definition of the principal Act to be amended is the Children and Family Relationships Act 2015.
Section 2 amends section 4(a)(ii) of the principal Act relating to the definition of "donor" by the substitution of "section 26(5)" for "section 26(6)". Section 26(5) of the Act of 2015 refers to gametes that are subject to a transition period of three years, during which those acquired on an anonymous basis prior to the commencement of Parts 2 and 3 of the Act may be used in a donor-assisted human reproduction procedure in the State subject to certain conditions. In the Act of 2015 as enacted, section 4(a)(ii) relating to the definition of "donor" refers to section 26(6) rather than section 26(5). This amendment simply resolves the matter.
Section 3 amends section 14 of the principal Act to provide for the Minister for Health to make regulations under that section.
Section 4 amends section 16 of the principal Act to provide for the Minister for Health to make regulations under that section.
Section 5 sets out the citation and commencement provisions for the Children and Family Relationships (Amendment) Bill 2018.
The technology of assisted human reproduction has created a new reality. Irish law must adapt to reflect these changes. The Children and Family Relationships Act 2015 brought much needed clarity in this area. Further delays to commencement of Parts 2 and 3 of the Act will impact the rights of the most vulnerable individuals in a donor-assisted human reproduction procedure - the children. That is why we are all so eager to rectify this area. It will enable us to commence these provisions in the autumn and have declarations of parentage established. That will allow the families affected to be recognised as we all intended when we voted for issues like marriage equality and passed legislation to give effect to the new reality of a more inclusive and tolerant Ireland.
There is far more work to be done on other important issues, including issues relating to surrogacy. I hope the Oireachtas seriously gets on with that business. Certainly, I will be committed in that regard in the autumn session and beyond with this assisted human reproduction legislation. Again, I refer people to the general scheme on my Department's website and the pre-legislative scrutiny currently under way in the Joint Committee on Health.
I commend the Bill to the House. I hope we can speedily resolve the technical issues that the Bill seeks to address and facilitate the commencement of Parts 2 and 3. I have no doubt we all agree these provisions are eagerly awaited and long overdue. I thank Members of all parties and groupings for their co-operation in the speedy introduction of this stand-alone Bill.
The 2015 Act was one of the most important reforms in child and family law since the Adoption Act in 2010. Critically, it made the best interests of the child the central consideration in Irish family law where decisions regarding the child were being made. It addressed issues of guardianship, custody, access, maintenance, adoption, parentage and some elements of assisted human reproduction. It was an important step forward in recognising the evolving nature of families in Ireland. It received cross-party support and I hope that support will continue this evening. The Minister should note that Fianna Fáil will support this technical amending Bill.
The briefing we have received is that everything before the House is purely technical. That is set out in the explanatory memorandum. We are told the Bill does not change any of the substance of the Act. Therefore, I do not intend opening up the Act again this evening. It was debated at length and went through with cross-party support. However, that position is clearly on an understanding that this legislation is as we have been told, that is to say, purely technical and purely to correct a typographical error. I call on the Minister to confirm that for me at the end of Second Stage.
Parts 2 and 3 of the Act, which this Bill will commence, deal with the procedures for parentage in the case of donor-assisted human reproduction. Fianna Fáil supports the commencement of these provisions. The changes proposed will provide for much needed clarity for parents of donor-conceived children. It will ensure clear understanding about the rights, responsibilities and consent in donor-assisted reproduction. It will ensure a child's right to know his or her genetic identity, as enshrined by the United Nations.
Commencement of these provisions will be particularly welcome for same-sex couples. It will provide clarity on important issues of guardianship, custody, access, maintenance, adoption and parentage. It will allow them to legally declare parentage of a child and allow couples to seek a retrospective declaration of parentage. We have heard from the Minister on this. It will allow parents to have their names on the birth certificates of their children, which is highly significant on a legal level as well as on an emotional and human level.
The Bill does not deal with many of the outstanding errors relating to assisted human reproduction. We look forward to discussing these on Committee Stage. We have done the pre-legislative scrutiny and we look forward to engaging with the Minister and his team in the coming months in this work.
I wish to share time with Deputy Denise Mitchell. I welcome the families, some of whom are in the Gallery and more of whom will be watching the proceedings this evening. It is a great evening for them and there is much to be celebrated.
The Children and Family Relationships Act 2015 was signed into law three years ago. That was definitely a monumental year for the LGBTQ community in this State. The passing of the marriage equality referendum and the Act represented great change for this State. The significance of that year pointed definitively to a brighter and more inclusive future for those in the LGBTI community. Most important, it produced some tangible results for them.
There were definitive results and there was a sense of achievement. However, in the case of the Children and Family Relationships Act the achievement only appeared to be real. Unfortunately, the reality of that Act has yet to be fulfilled and much of what was promised has not been delivered for those in the LGBTI community and same-sex couples. It is incredibly unfortunate that this is the case and that we have to ask why it has taken three years to bring forward even the most limited legislation to implement the relevant parts of that Act on behalf of those affected. Since I was elected to the House I have called for legislation to fully implement the Act time and again. Many other Deputies have done likewise.
There are same-sex families and couples who will definitely benefit from this legislation. Today is no doubt a significant day for them. With this in mind I commend the Minister and the Department on bringing forward this legislation. I hope this legislation delivers for them and gives them and their children the provisions and protections they need.
While the families affected are families in our eyes and in their eyes, this legislation ensures that the State recognises them as families and gives them the opportunity to register the births of the children with both parents registered on all relevant documentation. The real-life legal protections that this offers and the associated implications cannot be understated for these families. Moreover, we cannot downplay the positive personal effect of the State recognising both parents on a child's documents.
I have some experience of this, dating from when I tried to get a passport for my daughter, who was born before my husband and I were married.
It was many years ago and much has changed in this State since then. I found it incredibly difficult to find a garda who would stamp the form because my husband and I were not then married. I knew who my child's father was but it was difficult. It felt disrespectful to my family that we did not fit in and were treated like a square peg in a round hole. That is well over 20 years ago and I am happy that circumstances have changed. However, I have received extensive correspondence from same-sex couples. All they seek is what I sought then, namely recognition for our little family unit, however it is constituted. I can understand their concerns and the fact that what is on that piece of paper is important. Although people tell them that they know they are a family, having that piece of paper is important.
The LGBTI community have fought hard for this legislation. They should not have had to fight for it; it should have been forthcoming from the State. At the recent Pride parade, I saw an interesting banner that said, "You only gave us rights because we gave you riots". There is some truth in that. People have had to fight hard for basic recognition. That was wrong but it is good that we have begun the process of putting that right.
Members of the LGBTI community continue to fight for their rights. With that in mind, I cannot let the opportunity pass without commenting on some of the disappointing aspects of this Bill and what it fails to do. The State has a long history of failing the LGBTI community and even with the progressive and positive moves in recent times, that cannot be forgotten. It is concerning that the State is leaving a number of same-sex couples behind and that this legislation will not cover them. Male same-sex couples will be left behind and will not be covered by this legislation as will some female same-sex couples who did not choose home insemination or others who chose fertility treatments abroad and for those who chose to go the route of surrogacy, particularly in the case of male same-sex relationships.
I cannot overstate the concern and disappointment of the many families who have contacted me because they believe this legislation will not help their situation. These families are tired of having to constantly fight for their rights and they want a normal life. Like any family, they want to register the births of their children with both parents on the documentation.
The Minister and the Government will bring forward two different Bills to address the outstanding issues relating to the Child and Family Relationships Act. They need to speak to the stakeholders, listen to their concerns and they must be guided by what they tell them. Some of the sections of the Child and Family Relationships Act that have not been implemented need the implementation of the assisted human reproduction Bill 2017 to become law. I urge that this Bill come back before the health committee for another round of pre-legislative scrutiny as soon as possible.
I am happy that this legislation covers some same-sex couples but we have a job to do to ensure that the message of inclusivity that we are trying to send out is made a reality for the families who so desperately need it.
While I welcome this Bill, it is ridiculous that three years after marriage equality was endorsed by the people in a referendum, many families are not seen as equal in the eyes of the State. Over the past year, I have repeatedly raised this issue in the House under Questions on Promised Legislation and through written parliamentary questions. Time and again, we were given deadlines that were not met and we were brushed off. Many same-sex families have rightly grown very angry at the Government's failure to sort this out. Therefore it is good to finally have something concrete before us.
This Bill will benefit many LGBTI couples by giving them the opportunity to register both parents on a birth certificate and to avail of equal parental rights, as enjoyed by other families. This ensures legal protection on issues such as guardianship and inheritance rights. However, we cannot ignore the fact that this Bill does not go far enough. Male same-sex couples will be largely left behind along with many female same-sex couples, including those who conceived through home insemination.
In recent weeks, many families who are very upset have contacted me. They understandably thought they would be included in this Bill.
I welcome the Minister of State's comment that these issues will be addressed at a later stage. We cannot leave people behind. The children of these families know exactly who their parents are. They do not need the Government to tell them that. However, what they do need is for this State to recognise their family in law and to treat them equally. I welcome the Bill but it does not go far enough and we cannot leave any more families behind.
I will share my time with Deputy Bríd Smith. I welcome the Bill. It is very late but I welcome it on behalf of the LGBTQ+ parents who will have their rights as parents acknowledged and those of their children as a consequence. Serious questions need to be answered about why this legislation has taken three years. I can accept that technical mistakes can happen and so on, but for a long time when we asked questions on this, we were told that there was a problem with one thing or another and the Government was looking at how to resolve them and so on. Eventually, the Government had to return to the House with amending legislation. That should not have happened three years later, but immediately after the problem was recognised.
It is clear this has happened because the community began to mobilise on the issue. Important meetings took place. "We are Family" was the theme of this year's Pride parade and political pressure was bearing down on the Government whereby they could not stand over the situation any longer. It is a movement of people forcing the Government to act on the issue.
I also want to point out the inadequacies of this Bill. I acknowledge that they are rooted in the legislation that was passed three years ago, rather than being inadequacies of this particular Bill, but the number of LGBTQ+ parents who are excluded is an issue. Many of them will gather outside the Dáil at lunchtime tomorrow to protest, and I will join them. They support the passing of the Bill but they demand action to ensure that all parents will be treated equally.
Some of the practical issues have been referred to. I have been in touch with a couple recently, Leeane and Nile. Leeane wrote:
We they had created their baby together, and went through the process every couple does with the intention of creating a human. I willing signed up to love and care for someone for the rest of my life. Is this not what makes a family?
This month, we celebrate gay pride. The theme is "We are Family". How much of a slap in the face is this to all same-sex parents out there. Instead of celebrating our first Pride as a family we will be marching and protesting for our rights again.
I wish I could tell Leeane that after the passing of this legislation, her family will be fully recognised, but unfortunately they will not because they had a home insemination. This is not a situation of a known donor; the donor is traceable and attended a clinic outside the jurisdiction, so unfortunately they will not be covered by this legislation.
The point has been made that those who availed of surrogacy, which in the vast majority of cases is men, are not covered.
They are left in the same legal limbo for the moment, until the other legislation is brought forward. The other key issues relate to clinics outside the State, which are not being covered in some circumstances, and to retrospective recognition of the myriad circumstances in which same-sex parents find themselves because of the difficult legal situation they have been in. Provision needs to be made for proper backdating of recognition so that birth certificates can be recorded correctly. This has implications for children. I see this primarily as an issue of children's rights. If a parent dies, for example, serious legal issues and complications can arise in respect of guardianship, inheritance and so on. This is a matter of discrimination. For that reason, we will press our amendment when the Bill is debated in detail on Committee and Report Stages. We are seeking to commit the Government to come back and report on this matter six months after the commencement of this Act. We want to make sure the Government cannot avoid dealing with these issues. We believe it should be forced to come back and set out what it intends to do with regard to issues like surrogacy, insemination outside the State, including home insemination, and the retrospective issuing of birth certificates. It is appropriate for the Dáil to make such a demand of the Government.
I concur with everything that has been said. I will seek to add to it. In a year in which the family is being celebrated by both Pride and the Pope, it is ironic that we are just catching up and putting proper structures on the families of same-sex couples. I know the Minister recognises that there is a problem. I spoke to him a short time ago. He is not accepting our amendment, which we will press. I am sure the Minister of State, Deputy Jim Daly, will explain why the Minister is not accepting it. Many same-sex couples are concerned that our amendment will have an impact on the Bill. I assure them that if the amendment is accepted, the only impact it will have will be a positive one. If it is rejected, it will have no impact whatsoever on the Bill. There should be no worries about that.
Like Deputy Paul Murphy, I want to mention the case of a couple that falls into this category. Stephanie and Bex have a daughter, Eva. They live in Roscommon. Stephanie, who is the birth mother, suffers from an arthritic condition which is worsened by treatment with hormones. Her doctor recommended that she should not go to the clinic. He said she should stay at home to have home insemination carried out. Stephanie and Bex know the donor. Under the legal contract they have drawn up with the donor, he waives all commitments and any obligation to the child. They do not hold him responsible for maintenance or anything of that nature. When Eva reaches the age of 18, she will be free to seek him out and he will be happy to meet her at that point. That is all set out in a legal agreement that has been drafted by both sides. Stephanie and Bex are left in a difficult situation. I can only feel for them. When the health of a woman who has a small child is compromised to the extent that she is receiving treatment, there has to be a worry that her demise might leave the other parent and the child in limbo. As previous speakers have said, in circumstances in which a birth mother is ill there is a possibility that her health will become more compromised. We hope that women in these circumstances do well and these issues do not come into play. The woman in this case needs to do well with her mental health and with her lifestyle. If that is to happen, she needs the same protections that this legislation attempts to give to all other same-sex couples.
Another cohort of couples will stay at home for insemination because of the cost of going to these clinics. They cannot afford the €1,500 that is needed to make each effort. Their economic circumstances prohibit them from being recognised by the State as a family. Gay couples who have opted for home insemination and gay couples who have gone through surrogacy are not recognised. For all of these reasons, we believe our amendment would strengthen the hand of the Minister and the committee, rather than weakening it. That is why we propose that a report be prepared within six months of the Bill being passed.
We do not want to leave anyone behind. In this Chamber, we talk a lot about equality. The Taoiseach talks a lot about being the leader of an Ireland of equal opportunities. This legislation denies such equality to a cohort of parents and their children. I plead with the Minister of State to accept our amendment. If he does not do so, I plead with Deputies on all sides of the House to vote for it. The amendment will not harm the overall Bill. All it will do is strengthen the future work of the committee as it seeks to deal with surrogacy, legacy issues and retrospective parenting. I have mentioned the sad and compelling case of Stephanie and Bex. There are others who cannot afford treatment in the clinics. I ask Deputies to support this amendment. It will not damage the overall Bill we have before us tonight.
I will share time with Deputy Pringle. There is a great deal of confusion about this issue because people think it involves moving the Children and Family Relationships Act 2015 onto the next stage. Like every Deputy who has spoken so far in this debate, I have received many emails on this Bill. In light of the ongoing confusion I have mentioned, a concerted effort is needed to send people a message about what is involved in this amending Bill, which is necessary to facilitate the enactment of Parts 2 and 3 of the 2015 Act. My understanding is that this technical Bill involves the amendment of two sections of the 2015 Act. Section 4 gives certain rights to families that have children from anonymous gametes and intend to use existing stored anonymous gametes to have further children who will be siblings to the existing children. This acts as a transitional arrangement to enable those who have conceived via anonymous donors to use gametes stored from the same donation for the conception of another child. However, anonymous donation will be banned after the 2015 Act has been fully commenced. This amending Bill will specifically amend a reference to "section 26(6)" in section 4 of the 2015 Act. Without the correct reference, families will not be able to use their stored donor gametes at all, which would go against the transitional arrangement inherent in section 4 of the 2015 Act.
It is important for us to send a message to people about what is involved in this legislation. Sections 14 and 16 of the 2015 Act deal with consent forms and cover numerous circumstances in relation to donation, including consent to use donation and to have donor implantation. They also give the Minister the power to make regulations in this regard. This amending legislation will amend sections 14 and 16 to enable the enactment of Parts 2 and 3 of the 2015 Act. I want to clarify that this amending Bill addresses the position in respect of same-sex female couples only. My understanding is that the position in respect of same-sex male couples will be addressed in the upcoming assisted human reproduction Bill at the end of the year. That is one of the reasons I support the amendment that is being proposed by People Before Profit. It is important for us to have a timeline. After this amending Bill has amended the relevant sections of the 2015 Act in the manner I have outlined, it will be possible for Parts 2 and 3 of that Act to be enacted. The enactment of those Parts will allow same-sex female couples to apply to the courts to declare parentage. It will not allow for the deregistration and reregistration of a birth certificate that is required to have a partner's name on the birth certificate. For this to happen, Part 9 will have to be enacted and this falls under the remit of the Department of Employment Affairs and Social Protection
Other Deputies have mentioned particular queries they have received. I would like to refer to a query I have received from a couple. The person who sent me the query said that she and her wife have a two year old daughter and that she is pregnant with their second child. They went abroad - to Spain and to Portugal - for both babies to avail of reciprocal IVF, which is not legal in Ireland. This form of shared motherhood means that the woman who wrote to me carries the pregnancies and her wife's eggs are used. Even though her wife is the biological mother of both children, she is a legal stranger to them currently. This woman told me she understands that the Bill before the House will cover only those lesbian couples that have used Irish clinics with identifiable donors. She and her partner used a clinic abroad with an anonymous donor because this was the only option open to them in Spain and Portugal. They want to know where this legislation will leave them. The woman who contacted me thinks it is crazy to think this legislation will not extend to her wife, who is the biological mother of their children. She made the point that if anything, her wife and not her should be the person who has rights to the children. Regardless of how same-sex couples conceive their children - in clinics, through IVF, via home insemination or through surrogacy - their children are all equal.
People want equality and legal recognition.
As I stated, it is an amending Bill. Most parties will be supporting it because it is three years too late. It should have been introduced much earlier. I will be supporting the amendment tabled by People Before Profit.
I welcome the opportunity to speak on this Bill. I raised these issues during Leaders' Questions last week because of a mass of confusion and anxiety among families in limbo due to the slow implementation of relevant legislation and a lack of communication from the Department of Health. While it is important to understand what this amending Bill and the Children and Family Relationships Act 2015 will look like when fully commenced, it is also important to understand what the legislation will not cover. I hope to clarify this is my time today.
Some Parts of the Act of 2015 have been commenced since its enactment in 2015 but it remains a mystery as to why it has taken so long to commence Parts 2 and 3. All the Government has said is that it is largely due to errors in drafting. This is fair enough but I agree with Deputy Paul Murphy that an amendment setting a timeframe, whereby one would have to report back, would have dealt with the issue. We could, therefore, have commenced the legislation a long time ago. Therefore, I will support the amendment also.
This Bill seeks to correct the errors. I hope the Bill will be passed by the end of this week in order that the various Parts can be commenced. This will mean Part 9, which establishes the donor-conceived persons register, can be commenced by the Department of Employment Affairs and Social Protection in or about October 2018.
As of July 2018, the commencement of Parts 2 and 3 of the Child and Family Relationships Act 2015 will allow some LGBTQI parents to be legally recognised as co-parents of the children. The primary focus of Parts 2 and 3 is conceptions using donor sperm in a clinic in Ireland. This is most likely to affect lesbian couples or same-sex couples where both partners are legally recognisable as female where one partner carries a pregnancy. However, the amending legislation will not cover adoption, surrogacy, home inseminations or reciprocal IVF using donor sperm. A separation of guardianship and parentage rights will remain until these aspects are addressed in the assisted human reproduction Bill. This is where issues regarding the various other forms of conception or the forms affected by not commencing legislation must be addressed.
With regard to pathways to parenthood not currently included in this Bill, the assisted human reproduction Bill 2017 may afford a significant opportunity for inclusion. Commencement of Parts 2 and 3, along with Part 9, which is to be commenced at a later date, will allow for certain same-sex parents to register with the registrars for births, deaths and marriages as parents and obtain a birth certificate that reflects this, in the following circumstances. The first is retrospective recognition of children conceived before commencement using an anonymous sperm donor in a clinic in Ireland or abroad, and conception using a traceable sperm donor in a clinic in Ireland or abroad, implying the child has a right to trace the donor when he or she reaches 18 years of age.
It is important to clarify the date of conception is the relevant point in time so a pregnancy ongoing at the time of commencement will not be affected and any children born as a result of that pregnancy will be covered by the retrospective provisions.
It is also worth noting that section 26(5) allows clinics to use donor sperm acquired before the date of commencement in a donor-assisted human reproduction procedure for a period of three years from the date of commencement regardless of the anonymous status of the donor. This is only where the intending parent is already the parent of a child born as a result of a donor-assisted human reproduction procedure using sperm from the same donor but clearly allows families that wish to have genetic siblings to achieve that objective. A similar position arises with respect to embryos created prior to commencement regardless of the anonymous status of the donor or donors. There is, however, a significant argument that the three-year time limit will not apply to embryos.
In the case of future recognition for children conceived after the commencement date, it can be achieved using a traceable sperm donor in a clinic in Ireland only, or using a known donor in a clinic in Ireland only. Although it is not known how this process would work in practice, in theory the legislation does appear to allow for this scenario. Any further clarification from the Minister on this point would be much appreciated.
One uncertainty remains in this Bill. The issue of children conceived after commencement in a clinic abroad or in a clinic using an anonymous donor will not be covered by the legislation. It is not clear why the Children and Family Relationships Act 2015 does not recognise clinics abroad, particularly when many of them could be in a position to satisfy the document requirements of the Act. This should be addressed in all future legislative developments. I hope the Minister will take this issue into account given the reality that couples are using clinics abroad that address their medical needs and which should be reflected here.
I thank LGBT Ireland, which has done a considerable amount of work on seeking clarification and information on legislation that has a drastic impact on families in Ireland. I hope to see the assisted human reproduction Bill in the Dáil in the next term in order that outstanding issues will be addressed properly in consultation with civil society and parents who have been affected.
I wish to share my time with Deputy Eamon Ryan.
I have no difficulty with the Bill. It is a technical Bill to address problems with the 2015 Act. I will certainly be supporting it on that basis. As other Members have said, however, one must ask why, three full years after the passage of the 2015 legislation, it has not been enacted in full. When one considers what has happened in respect of adoption, and now in respect of registration, one must ask why so many mistakes were made. There were mistakes in addition to a delay. How were the mistakes made? Why has it taken three years and a lot of pressure by LGBT Ireland to force this issue?
There are three Departments involved, namely, the Departments of Health, Employment Affairs and Social Protection and Justice and Equality. It seems there was no sense of urgency on the part of any of those Departments with a view to making progress on this issue and ensuring the implementation of the 2015 Act.
I do not have any difficulty with the technical amendments. They deal with a transitional arrangement for those already conceived via an anonymous donor and for gametes from the same donor that are already stored in the event that there is a desire to conceive another child - a related child. We know anonymous donation will be banned once the principal Act is fully commenced. That is fine. The other aspect is to deal with consent forms in regard to the numerous circumstances associated with donation. I refer to consent to use donation, consent to have donor implementation and so on. The two amendments are technical amendments to make improvements in this regard to allow the commencement of Parts 2 and 3.
Over recent weeks, when asking about this, as other Members have done, I concluded it is quite incredible that, as recently as 12 June, the response from the Department of Health was that there were discussions ongoing and that "we do not wish to pre-empt the outcome by citing specific details." It also stated, "Clarification on whether primary legislation is required to resolve these issues is being sought." It is incredible that, up to last month, clarification had not been sought and that the question of whether primary legislation was needed was still being considered. Of course, we do need it and that is why were here tonight. Why were three years allowed to elapse before that was actually established?
An issue also arises regarding Part 9. When I raised this with the Minister for Justice and Equality recently, the reply was really passing the buck. It stated Part 9 could not be commenced until Parts 2 and 3 were dealt with. With regard to Part 9 and registration, it was stated it was a matter for the Department of Employment Affairs and Social Protection. There is extraordinary passing of the buck by various Departments. When I raised the matter with the Department of Employment Affairs and Social Protection, the response was quite extraordinary. The Minister for Justice and Equality said it is a matter for the Minister for Employment Affairs and Social Protection while the latter stated:
A number of amendments to civil registration legislation, including [Parts 2 and 3], remain to be commenced pending the roll-out of training to staff of the Civil Registration Service who are employees of the HSE. The General Register Office is in a position to begin provision of training as soon as the HSE notifies it of the dates and venues.
For goodness sake, people's lives are depending on this. Families are crying out for proper registration systems but there seems to be messing going on within the HSE and the Department of Employment Affairs and Social Protection about the dates and venues for the training of staff. The Minister, Deputy Regina Doherty, recently stated to me that "Discussions to commence the training are well advanced and it should hopefully commence shortly."
Will the Minister take hold of this issue and ensure that as soon as this Bill is passed, it can be completed so we can get to a point where staff in the HSE are provided with proper training for the new registration system? What has been going on over recent times is just nonsense. What were the three Departments doing? Finally, the amendment from Deputy Paul Murphy and his colleagues is absolutely sensible. I do not see why all of us would not agree to it. I hope the Minister will support it. Certainly, the Social Democrats are happy to do so.
I am glad to take part in the debate tonight. My party was not in the Dáil when the Children and Family Relationships Act was passed so it has been interesting to hear about the different cases involving different families, circumstances, realities, legal gaps and the different failings that exist at present. I echo the regret of those who may have been involved in the passing of the original legislation that the commencement of these sections has been delayed for three years because of a technical failing. We support the Government's Bill to address that and to ensure the full commencement of the Act.
It is welcome that we are living in an Ireland which, as the Taoiseach said yesterday, recognises every type of family and recognises the importance of protecting their rights. I also welcome the Minister's clarification that the legislation is framed with a core understanding or commitment in it that the rights of the child as recognised by the United Nations are also included and guaranteed in the Bill's provisions, particularly with regard to the right at the age of 18 years to be able to find the identity of the original genetic parents. The Minister for Children and Youth Affairs, Deputy Zappone, has been engaged on the issue of birth certificates and birth certificate issues have been centre stage in the Dáil in recent months. I believe there is a right to that information and we should ensure it is provided for in the legislation. There is a range of reasons that access to such information makes sense. There will be difficulties with that for certain families and certain circumstances where it may restrict certain choices, but the approach that centres on the rights of the child, as well as the parents is the proper and correct way to go.
I welcome the clarification the Minister has outlined. I presume the commencement will lead to the establishment of the register he mentioned and that the disclosure capability or the ability to find out the relevant information will be provided. We support the Bill and look forward to its full enactment.
At the heart of the legislation is an acknowledgement of the changing nature of families in Ireland today. The norm was a female mother, male father and X number of children but that is no longer the case and it is positive that this Bill acknowledges it. However, I agree with Deputy Joan Collins about the confusion that existed.
It is when we come into contact with people in different, non-traditional family groups that we become aware of the serious difficulties they face when registering their children and their status as parents. Passports is another area. For example, I know two women who married a couple of years ago and had a child this year. Their dilemma was that the Children and Family Relationships Act had not been fully commenced so one of the couple would be a legal stranger to that child. They had been overjoyed about marriage equality and that their relationship was legally recognised as equal and valid. Then they had the joy of their child but that is somewhat on hold now. They want to register their child and both parents of the child but without the legislation being commenced, the child would be registered as the child of a single parent, which is not the case.
I acknowledge the work that is being done to address the issues, including the briefing given by the Department of Health and the Minister's engagement with the LGBTQ community. At least with the commencement of Parts 2 and 3 same-sex female couples can apply to the courts to declare parentage but it will not allow for the de-registering and re-registering of a birth certificate to have the parents' names on the birth certificate. Part 9 has to be commenced for that to happen, and that is under the remit of the Department of Employment Affairs and Social Protection. Same-sex male couples will have to wait for the assisted human reproduction Bill. There are LGBT couples who have or will have children and those parents and children should have the same rights as the biological children of heterosexual couples. A heterosexual couple can use a sperm donor and nobody need know. There are good examples from Canada, as I know personally from friends, of supports for same-sex couples to have children, such as assisted reproduction, surrogacy and sperm donors, and the process of registering the children is straightforward.
Last Saturday's edition of The Irish Timesincluded personal accounts of parents in these situations. A same-sex male married couple had a son through surrogacy in Canada, where they had been living. On the child's Canadian birth certificate both men are listed as his parents but under current Irish family law neither has legal rights over their son. The surrogate mother and her husband would be considered the child's legal parents even though she has no biological connection to the child as a donor egg was used. Of course, it would be a costly process here to go through the courts. There are also some good examples from UK law where the names of the same-sex parents are on the birth certificates. In addition, there was an account of the difficulty of recognising adoptions arising from surrogacy.
It is positive that prior to the same-sex marriage referendum, the Children and Family Relationships Bill was passed to amend Irish family law and extend parental rights to non-traditional families. Marriage equality was a positive start so there is now a need to address the other issues around parentage in the best interests of the children involved. As the Minister said earlier, this is about accepting the reality. However, there is an urgent need to cover the omissions in the legislation.
There is an appeal to the Minister from a broad range of speakers tonight. We accept this is a positive step forward but the piecemeal approach undermines the positive elements of this legislation. I remember being in the House 15 years ago for the apology to people who had been in institutions and so forth. At the time there was a list of certain institutions and over the years, other institutions have been added to it. However, we left out many people and in doing that we compounded the hurt and hurt many more. Last weekend I was in Mount Jerome. Four new Bethany homes have been found and there is a new memorial there. What we are doing in this situation is leaving people behind and that is not the idea behind this process.
People passed a referendum in the expectation that we, as legislators, would come up with legislation for those family units. Ireland is far different now from ten or 16 years ago. There are different family formations and as an inclusive Ireland, we must represent that. That is our job. We are appealing to the Minister to consider the proposal being brought forward. It is quite reasonable. We are asking that after passing the Bill, the Minister will review this. I do not understand what the problem is with that. It commits the Government to conducting a review that will examine the status of parental rights of same-sex couples in terms of surrogacy and of those who sought fertility treatment outside the State. It is something we should be able to examine. It is a reasonable request and it should be part of this process in which we are engaged.
This is about families and individuals. We all know the difficulties people are experiencing trying to access birth certificates, passports and so on and the difficulties on the family unit when one parent gets sick. I appeal to the Minister to reflect on the vote of people across the country in favour of same-sex marriage and the expectation on us to reflect that in legislation. It is a reasonable request. I appeal to him to re-examine the legislation.
I had intended to wait and speak to the amendment but I will make some points now. It was shocking to people to discover that three years on from the historic referendum this matter is not addressed in legislation. We have received calls from people we know who cannot be properly recognised as the parents of their children. It was news to a lot of people that this had not been properly legislated for. We have proposed an amendment to ensure this is done within a certain timeframe.
There is frustration among the LGBT+ community at the delay and the drafting error. Human error is understandable but we need to take steps to right that error as soon as possible. This is about children's rights. It is about these children being treated in the same way as any other child. Real and practical problems arise for people, including the emotional issue of not being properly recognised on a birth certificate. There are also serious legal issues for children whose parents are not properly recognised. For example, upon the death of a non-recognised parent a child may have to pay inheritance tax because he or she will not be legally recognised as the child of that person. Pension benefits that might accrue to the child when somebody dies is also an issue and citizenship can also be an issue if the parent who is recognised as the parent is not Irish. There are problems with passports, which parents need to sign-off on. Couples are trying to live their lives and they cannot wait around for the Government to update this law. I will elaborate further on that point when I move our amendment on Committee Stage. We believe it is important to cater for those who are children born arising from non-donor assisted human reproduction facilities.
I thank everybody who contributed to the debate. I assure all Deputies that a huge amount of work has been undertaken by a number of extraordinarily dedicated officials to try to ensure that we get this right. Deputy Crowe put it best when he said that people voted wanting to live in an inclusive Ireland. However, this is a fast evolving area and we need to ensure that legislation responds to recognise that there are many different compositions of families - which is a good thing - and we need to protect and support all of those families and children.
What we are seeking to do tonight is not to reopen the debate on a Bill passed in this House in 2015 and signed into law by the President but rather to fix an error in that legislation. We then need to do what we should do as legislators, which is get on with passing the assisted human reproduction bill 2017. I do not want to be, and I have no intention of being, in any way partisan on this issue because, as Deputy Coppinger said, the people cannot wait for Government to get on with it. It is up to all of us in this House to get on with it. I brought the general scheme of the Assisted Human Reproduction Bill 2017 before the Joint Committee on Health. It is still with that committee and I am sure members of the committee are working hard on it. I published the Bill following approval by Government. No doubt we can make it a better Bill. I had a good meeting with LGBT Ireland this week in the Department. Taking Deputy Shortall's point on board, I have committed to convening a round table of all the relevant Ministers and Departments in early September where we will thrash out not only the issues related to health, social protection or education but all of the issues across the State that we need to resolve so we can make sure we have the best possible assisted human reproduction Bill.
Deputy Coppinger referenced the amendment. I do not want to divide the House on this issue because Members in all parties and groupings have worked hard and facilitated this time in the Oireachtas and that is genuinely appreciated by the people in the Gallery and those watching at home. I do not want to pass an amendment that I am sure is well intentioned but will not make a difference to anybody. The amendment asks the Minister to do a report but we do not need another report; rather, we need to pass the assisted human reproduction Bill, which is with the joint committee. We need the pre-legislative scrutiny of the Bill completed, the Bill brought onto the floor of this House and the Government to get working with the Attorney General's office to be ready for it.
We have all the reports we need. The Deputies are proposing that what is provided for in the amendment be written into primary legislation to be sent to the President of Ireland to be signed and put on our Statute Book. The amendment provides under subsection (a) that a report be made on the parental rights of same-sex couples in cases of surrogacy. Until the Oireachtas gets around to legislating, those rights do not exist. If the Deputies want to do something about surrogacy there is no point in them asking me to do a report to tell them what they and all of us know. If they want rights for parents related to surrogacy we need to pass the assisted human reproduction Bill which has nothing to do with the legislation before us. We do need to do it, and I am happy to work with Deputies to do it. There is no point in them asking me to produce a report that will only tell them what they know, which is that these rights do not exist until such time as the Oireachtas gets around to doing its job in respect of the assisted human reproduction Bill.
Subsection (b) asks the Minister to produce a report on the position of spouses, cohabitants and civil partners of those availing of a donor-assisted human reproduction procedure outside of the State. I do not have jurisdiction outside of this State and even when people come back into this State, I do not have the legal powers to assert the quality of what took place in another country, the structures, laws, ethics of another country and so on. Again, I would be producing a report telling the Deputies that the Minister is powerless in regard to what happens outside of the State. Subsection (c) asks that the Minister do a report on the retrospective issuing of birth certificates and other documents to record both same-sex parents. This already happens, except in the case of surrogacy which brings me make to my original point about how we need to deal with it.
I appreciate what Deputies Coppinger, Paul Murphy and Barry are trying to do in keeping the pressure on. I want to keep the pressure on too and so my response in that regard is, "Right back at ye". This is a minority Government wanting to work with the Opposition to pass the assisted human reproduction Bill, which I have published and can be viewed on my Department's website. I do not want to pretend to do something that will not help anybody and would result in my officials having to draft a report that would tell the Deputies what they know. I say this not to be mean-spirited, difficult or partisan but because I genuinely do not believe the amendment would achieve anything. I would rather agree with the Deputies practical measures such as timelines for the assisted human reproduction Bill and how we can work on a cross-party basis to agree the next steps. The Deputies are more than welcome to attend the round-table discussions that I propose to hold with relevant stakeholders and LGBT Ireland in terms of these issues. I would be happy to agree practical measures. I just do not believe the amendment is a practical measure. I recognise that it is well intentioned and I do not mean to be partisan in relation to it. We can discuss it further on Committee Stage.
This legislation is long overdue and badly needed to rectify an error in order that we can provide declarations of parentage and recognise families that exist in a real and practical sense in our country today but need to be recognised in our law. I commend the Bill to the House.