Ivana Bacik (Independent)

I move amendment No. 3:

In page 17, between lines 25 and 26, to insert the following subsection:

"(4) In this Act, "married couple" means an opposite-sex or same-sex married couple or a couple who have entered a registered civil partnership with each other.".

I welcome the opportunity to discuss this important amendment but I should at the outset declare my interest as counsel in the case taken by Zappone and Gilligan regarding the right of same-sex couples to marry, which clearly has a bearing on my proposed amendment. Amendment No. 3 takes a conservative approach in that it follows the practice in the bill of using the term "married couple". My colleague, Senator Norris, has tabled an amendment which takes a different approach but would have a similar effect. I considered a more radical amendment that would have extended the categories of those who are eligible to adopt beyond persons whose relationships are recognised. This Bill replicates an anomaly that exists in Irish adoption law whereby the only persons eligible to adopt are either single persons applying alone or married couples. In other words, no provision is made for adoption by a cohabiting couple, whether of the same or the opposite sex. That is anomalous because it means that a lesbian woman, gay man or heterosexual person could adopt on his or her own account irrespective of whether he or she is living in a relationship with another person. Eligibility for adoption would be considered on the basis of the individual and whoever he or she lives with will have no legal relationship with the child. It is anomalous that cohabitees are not capable of being considered as adoptive parents.

The more radical amendment I considered would have the expanded "married couple" to "married couple or cohabiting couple or person" but I restricted the scope of my amendment to a definition of "married couple" as a married couple of opposite sex or the same sex or a couple who have entered into a registered civil partnership. This is a pre-emptive amendment because it looks ahead to the time when, as the Government has clearly indicated, a legal system of civil partnership will be in place for same-sex couples.

If the legislation proceeds as the Government has indicated in the heads of the Bill, a system will be established of presumptive recognition of cohabiting opposite sex couples. Perhaps my amendment should, therefore, include this type of relationship. The amendment would also have to be accompanied by various other amendments to take account of a couple who were previously in a registered civil partnership, just as the present Bill provides that a couple whose marriage has ended will no longer be considered to adopt as a married couple. Where "married couple" is used in the Bill, it is taken to mean a couple who are married to each other and are living together. I am trying to extend in a somewhat restrictive manner the categories of those who are eligible to adopt to include only those same-sex couples who are married or have entered into civil partnerships.

When I raised this issue on Second Stage, the Minister of State responded: "Adoption is a right that is afforded to children, and the right of a child to a family is at the core of adoption legislation.". I completely agree with that statement and believe we cannot emphasise it enough. He went on to state:

There is also a right in my view which must be considered, that of same-sex couples. Their rights need to be explored. The Civil Partnership Bill is the forum at present for the extension of those rights. I am an extremely strong supporter of those rights but this Bill is not the appropriate forum for that.

I would accept the Minister of State's argument except that the heads of the Civil Partnership Bill make no reference to children or adoption. This is the reason Senator Norris and I have proposed amendments. The British legislation on civil partnership was introduced subsequent to reforms of that country's adoption law to enable adoption by same sex couples. A precedent therefore exists for providing for eligibility for same sex couples in adoption rather than civil partnership law. I urge the Minister of State to accept this method of extending eligibility, notwithstanding his stated view that the Civil Partnership Bill is a more appropriate vehicle. I welcome his acknowledgement that the right of same sex couples in this regard needs to be explored but it would be useful to do so in the context of the Bill before us.

The Citizen's Information Board guidelines on adoption by same sex couples indicate that current legislation is clear on the issue. Under current legislation it is not possible for a partner to apply to become a guardian of a child nor is it possible for him or her and the same sex partner to adopt a child jointly even where one of them is the birth parent of the child. This can no longer be justified in a modern state wherein, we know, there are already many children living within a secure and loving family whose parents are a same sex couple but with whom the child has no legal relationship as a couple even where one of the parents, as would be typical, is the birth mother of the child. That is an anomaly.

Many years ago, although rather belatedly, we equalised the position of children born in and outside marriage, which was a very important move. We say, and the Minister of State has reiterated this, that in all legislation of this type the primary concern must be the best interests of the child. I ask the Minister of State how it can be in the best interests of the child to continue to discriminate against children of same sex couples. There are in Ireland already many children, some of whom are well into their teens and older, whose relationship with their non-birth parent within a same sex relationship is not legally recognised. It is wrong that we continue not to recognise their relationship with their families.

I have no doubt there will be opposition to the amendments tabled by myself and Senator Norris. It may well be that the old canard that children have a right to two parents of the opposite sex will be restated. However, that is a meaningless thing to say. Children live in many different arrangements and with many different parenting situations. We have had in Ireland a long history of different types of parenting arrangements. All research indicates that it is the quality of parenting that matters to the child. What is important is that the child live in a loving home. The quality of parenting rather than sexuality or gender of either or both parents is what matters. I refer the Minister of State to the research of Susan Golombok and others. The most authoritative research establishes that there is no disadvantage to a child in being brought up by a same sex couple, a single parent or married parents, rather it is the quality of parenting that is of paramount importance.

At a recent seminar on civil partnership organised by Senator Norris, Fergus Ryan, an expert on this area of law, made the point that extending rights to children of same sex couples, as in this case, is not taking rights from married couples or from children within marital families, rather it is giving extra cake — to use that analogy — to people who should have it. That is an important analogy to make. If there are already, as we know there are, children in Ireland living in families with same sex parents who currently have no right to a legal relationship with the non-birth parent in that relationship, it is wrong that we do not extend to them the right to be adopted by their other parent thus ensuring they then have all the rights that follow from that. I am speaking again about the rights of the child as this must be framed in that context.

I cannot see any logical justification for opposing the principle behind this amendment and the amendment tabled by Senator Norris. I acknowledge many other amendments would have to flow from this amendment, if accepted, in particular to recognise the ending of a civil partnership. The amendment is predicated on a civil partnership regime being introduced. In principle, the amendment seeks to extend recognition for adoption eligibility to same sex couples. I do not see how the Minister of State can oppose that principle.