Dáil debates

Friday, 3 December 2021

Ceisteanna - Questions - Ceisteanna ar Sonraíodh Uain Dóibh - Priority Questions

Assisted Human Reproduction

9:00 am

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

1. To ask the Minister for Children, Equality, Disability, Integration and Youth the assurances and safeguards his Department can offer to children who find themselves in a situation in which their mother is not considered by the State as their legal parent (details supplied); and if he will make a statement on the matter. [58929/21]

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

What assurances can the Minister's Department offer to children who find that the State does not consider their mother their legal parent? This relates to children who have been born through surrogacy. Any proposed legislation is still some time away. What proposals are there to protect children's rights and welfare in the interim? I know the Minister supports resolving this issue and has met with relevant groups. I am just taking the opportunity to raise the issue again.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
Link to this: Individually | In context | Oireachtas source

The area of surrogacy is one of the most complex to deal with. Compassion and sensitivity are required, as is a very strong emphasis on the welfare of the children born as a result of this process. Since the formation of the Government, there has been substantial work and engagement with a view to future legislation on the wider issue between the Ministers for Justice and Health, the Attorney General and myself. My colleague the Minister for Health has lead responsibility for legislation in this area. His Department is working on drafting a Bill on assisted human reproduction, AHR. This comprehensive legislation will encompass the regulation of a wide range of practices undertaken in this jurisdiction, including domestic altruistic surrogacy, for the first time. I understand that officials in the Department of Health and the Office of the Attorney General will continue to engage intensively over the coming weeks to finalise this legislation.

The Children and Family Relationships Act 2015 reforms and updates family law to address the needs of children living in diverse family types. The Minister for Health is responsible for Parts 2 and 3 of this Act. These were commenced in May 2020. Parts 2 and 3 deal with the issue of donor-assisted human reproduction.

While legislation in the area of surrogacy is complex, it is important to note that there are some important protections in place for children in advance of the legislation's enactment. The Department of Foreign Affairs has published guidelines for intending parents pursuing surrogacy arrangements abroad. The Irish authorities require intending parents to provide a written undertaking that they will notify their local health centre of children's presence within two working days of their arrival in the State. In addition, the genetic father is required to provide an undertaking that he will apply to the courts for a declaration of parentage and a guardianship order in respect of the child. This ensures that his legal relationship with the child is established and that he is in a position to make decisions on behalf of that child. The intending father must provide appropriate DNA evidence. An intending mother of a child born through surrogacy is entitled to apply for guardianship of the child where she is married to, or in a civil partnership with, the child's parent or has cohabited with that parent.

While these current protections are important, we all recognise that the best interests of children should be supported through the robust regulation of surrogacy. This is a priority for the Government, as is reflected in the programme for Government.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I thank the Minister. As I said, I wanted to raise this issue again. I know it falls under the remits of a number of Departments, including the Departments of Justice and Health. I also know that the Minister has met with the groups. In fairness, I believe he also went out to them the day they were here outside the Dáil. This is so frustrating for them. They hear a lot of very positive words in this Chamber and in their meetings. It is rare for everybody in this Chamber to agree on something but this is one of those issues on which we seem to. There does not seem to be any movement on it. I understood that legislation is forthcoming. That definitely needs to deal with the issue of international surrogacy. That cannot be left out. Are children who are in precarious situations, perhaps because of a health issue within the family, particularly if it affects the father, going to be left technically parentless? We all know they would not actually be parentless but they may be in the eyes of the State and that is really important. Some children could be stuck in a grey area. This is an issue these groups have been raising for a very long time. As legislators, there is a responsibility on us to deal with this issue, particularly when there is such cross-party agreement on it.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
Link to this: Individually | In context | Oireachtas source

I agree with pretty much everything the Deputy has said. The issue of international surrogacy will have to be addressed. We know it is a very sensitive and complex area. We have to ensure that whatever measures we bring forward offer protection for children when they come to Ireland and for their parents but they should also offer protection to the surrogate mother. That is really important. This person will probably be in another jurisdiction and we have to be sure that protections are in place for her and that the child conceived through surrogacy can seek to establish relations with his or her surrogate mother in the future if he or she wishes to do so. The Deputy is absolutely right with regard to the children who are here now who were conceived through different techniques. The law we are bringing forward must address all of their situations, which are often quite different from one another. Bespoke legal solutions may be needed for each situation in which children have been conceived.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I have two suggestions for practical solutions. With regard to the upcoming legislation, could the Minister and the Ministers for Health and Justice write to the committee to see if the pre-legislative scrutiny stage can be progressed as a matter of urgency? I believe it falls under the remit of the Joint Committee on Health although I would argue that some of it should fall under the remit of the Joint Committee on Children, Equality, Disability, Integration and Youth as it affects children's rights. Given that there is consensus on this matter, I believe the Bill could move through the committee and through the Houses very quickly. I believe everyone would support it. That is my first suggestion because we need to look at the legislation and the issue of international surrogacy.

With regard to children who are already with us, the surrogacy groups have really good legal representation and really good solutions based on international best practice. I know the Minister has met with these groups but is it possible to have a more formal meeting between the three relevant Ministers and Departments and those groups to discuss how to formalise the situations of these children so that they can be taken out of this grey area? I believe that could be done within a matter of months.

I know I have gone over my time but I will very briefly note that, over the past two years, we have seen that legislation can be passed quickly when there is an emergency. We can do the same with regard to children and surrogacy.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
Link to this: Individually | In context | Oireachtas source

I certainly agree. Urgency is important in this regard. However, I am sure the Deputy will agree that it is important we get this right in light of the complexity and the different situations we are dealing with. As I have said, a Bill on AHR is being advanced by the Minister, Deputy Stephen Donnelly. I believe it went underwent pre-legislative scrutiny in the term of the previous Oireachtas. However, as the Deputy has pointed out, it does not address the area of international surrogacy. An Oireachtas committee could be useful in addressing that matter. I know the Ministers, Deputies Stephen Donnelly and McEntee, have been engaging very intensively on this issue. While, as Minister for Children, Equality, Disability, Integration and Youth, I obviously have to ensure the best-interests principle is always respected, the actual legislative power lies primarily with the Ministers for Health and Justice. I know that their two Departments have been engaging very intensively and that the Minister, Deputy McEntee, in particular is very eager for the engagement we have had with the groups, which, as the Deputy has said, are expert in this area, to continue. I am sure that engagement will continue.