Ivana Bacik (Independent)

I thank the Minister of State for his considered comments on this matter. Like Senator Norris, I do not propose to divide the House in respect of my amendment. Rather, I wish to reserve my right to do so on Report Stage on the basis that the Senator and I have agreed to draft a composite amendment that will seek to address the clear discrimination that exists against same sex couples and to permit adoption rights. In so doing, we will certainly take on board the constructive comments that have been made by others, particularly the Minister of State.

In essence, we are discussing two different issues. I thank the Minister of State for saying that he is willing to consider the first of these. This issue, which I first raised, relates to a child — there are many such children living in Ireland today — who is born to a mother who is in a same sex relationship. That woman's partner has no legal relationship with the children or, to put it more pertinently, the child has no legal relationship with his or her non-birth mother. That is unfair to the child, who lives in a secure and loving home with two parents, and creates a form of second class citizenship for such a child.

I completely agree with Senator Norris regarding the nonsensical nature of speaking about a child's right to a father and mother. Such a right is not enforceable where the father is deceased or where, for example, a child is conceived through rape. A large number of the children to whom I refer were born into secure and loving homes and have two parents. Let us provide a means whereby the child can have a legal relationship with the non-birth parent in that situation. How can that be done? We propose to do it through adoption legislation, by permitting the non-birth parent to adopt the child. However, there is another way and I am anxious to hear the Minister of State's view on it. The way cohabiting parents deal with the rights of the birth father and the right of the child to a relationship with the birth father is through the simple mechanism of the statutory declaration. This is a standard form declaration which is sworn by the father in the presence of the mother and a solicitor, following which the father gets full legal guardianship rights along with the mother who has them by virtue of the birth. The plight of children born to same sex couples, where one is a birth mother and one is not, might be addressed through the guardianship mechanism. Is the Minister of State willing to consider that? In other words, it would treat a cohabiting non-birth mother in the same way as a cohabiting birth father. This issue could be addressed through adoption but I can see that is, perhaps, a simpler mechanism to deal with it. It could be done in the context of giving civil partnership rights.

The second issue is that of gay couples who wish to be considered generally for adoption on the same basis as opposite sex married couples are at present. There is clear discrimination here. I will go through the arguments. The Minister of State said that Senator Norris's amendment would effectively bring about discrimination between heterosexual cohabitees and homosexual cohabitees. He is correct; it would. At present, cohabiting opposite sex couples have no right to be considered for adoption as a couple. However, Senator Norris's amendment is justified in a situation where same sex couples cannot enter a legally binding relationship recognised by the State. I say that without prejudice to the Zappone and Gilligan case which is about the right to marry for same sex couples. I believe that right exists. At present, the mechanism in adoption law appears to preclude gay couples, especially non-married gay couples. That is a difficulty. I believe the Minister of State's criticism is unfounded.

The Minister of State rejected my amendment with the criticism that it is premature. I refute that outright; I do not accept it is a premature amendment. There is a clear commitment by the Government to bring forward civil partnership legislation. We have the heads of the Bill. It is common drafting practice to draft legislation but to delay its commencement when it is contingent upon something. I can offer a clear example, of which the Minister of State will be well aware. The Children Act 2001 provided for children detention centres and a new regime for the detention and treatment of children in the criminal justice system. Large portions of that Act were not commenced for several years after the Act was passed. It is not premature, therefore, to provide in this legislation for something that will become law. One could simply delay the commencement of the particular section until the other legislation is in force.

The Minister of State said a decision has been taken to confine adoption eligibility to married couples rather than extend it to cohabitees. It is a pity an extension of the categories of eligibility was not carried out in this Bill. As I and Senator Fitzgerald have pointed out, it is anomalous that one can adopt as a single person or as part of a married couple but not otherwise. However, one can see how, in the interests of children, an adoption authority would wish to be convinced where a couple are adopting that there is evidence of commitment. The fact that the couple entered some form of binding legal relationship might provide that sort of evidence. It is in the spirit of that conservative approach that I drafted my amendment. It confines eligibility to adopt to married couples but it defines a married couple in a somewhat different way from the definition used by the Minister of State. It is, therefore, in line with the Minister of State's policy arguments that eligibility should be confined to particular groups.

I hope the Minister of State will take those comments on board. Perhaps he would also answer a direct question. What does he propose to do for those children who are currently alive and well and growing up in a secure, loving home but have no legal relationship with their non-birth parent? We have seen the very distressing case of a grandmother whose grandchild's birth mother was killed in an accident. It meant there was no legal recognition of the place of the child's non-birth mother in the child's life. It was most unfortunate. Had there been a breakdown in relations, for example, the grandparents through the non-birth parent would have had no rights and the child would have had no rights of access to them. That is the type of difficulty we must address. Will the Minister of State consider addressing it, if not through this route through some other route such as guardianship?

I asked the Minister of State a direct question about the civil partnership legislation. Will he consider providing for adoption or guardianship rights for same sex couples in the civil partnership legislation instead? Even an indication that it might be considered would answer many of the points Senator Norris and I have made. These are not issues that necessarily must be dealt with in the Adoption Bill but, given that they were dealt with in the Adoption and Children Act 2002 in the UK before civil partnership, it appears to be a logical approach. It is anomalous that discrimination is continued in what is otherwise an excellent and reforming Bill that seeks to modernise our system of adoption. I genuinely welcome the Bill but it is unfortunate we did not take the modernisation a small step further.