Seanad debates

Tuesday, 24 March 2015

Children and Family Relationships Bill 2015: Second Stage

 

12:00 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank all the Senators who contributed. It has been a very interesting debate. We have heard many differing views from both sides of the debate, but there is also a broad consensus around many of the Bill’s provisions and a recognition that it is bringing family law up to date in respect of children in diverse forms of family. The Bill breaks new ground.

Several Senators focused on assisted human reproduction, AHR. There is no question that legislation in this area is long overdue. The commission on assisted human reproduction in 2005 recommended legislation. We need a regulatory authority. In the absence of that authority, this Bill deals with certain defined and limited aspects of AHR. They are the parentage issues. The Department of Health needs to do significant work too. If it is of any assurance to Senators, I spent a great deal of time in discussions with the Department of Health in developing the provisions in this Bill. The Minister for Health recently brought the general scheme for AHR to Cabinet and got approval to develop heads of a Bill. Many issues relating to AHR need to be dealt with by legislation. The plan is to develop the heads of the Bill later this year, have a consultation phase during which many of the issues Senators have raised will be dealt with and then move to heads of a Bill and legislation. A major process needs to take place. When I met the clinics and the Institute of Obstetricians and Gynaecologists, they were reassured when I explained that this legislation will form a small part of the much larger AHR provisions. We are giving a transition period in respect of many of the provisions in this Bill which will deal, for example, with the concerns of couples in treatment.

The Department of Health has done a significant amount of work and there is always an opportunity for briefing for Senators on AHR and how the Department is thinking about this issue. It has had to do a lot of preliminary work because it has gone to Cabinet seeking permission to develop the heads of the Bill. The bioethics unit in the Department of Health is dealing with this under Dr. Siobhan O’Sullivan. I have been working very closely with her to ensure the provisions in this Bill reflect the policy intentions of the Department of Health. It is very much in line with the policy development and thinking in that Department on AHR. There will be much consultation before the legislation is brought forward. However, in dealing with the parentage issues, it was clear we had to deal also with the issues regarding identity, and I decided that we could not deal with the parentage issue without tackling the issue of anonymous donations and those that are not anonymous. I accept this is a complex issue that has been approached in a certain way, culturally, in this country. I have had detailed discussions on it at a policy level but also with the Department of Health and the specialists in this area and it is clear that quite a number of countries have moved from anonymous donation to identifiable donations. Sweden, for example, changed the approach 30 years ago, and quite a number of other countries have moved as well. The United Kingdom moved to identifiable donations some years ago. There is no question that best practice is to move to known donation, and that is accepted by the relevant bodies here as well. The Institute of Obstetricians and Gynaecologists has signed up to this in its policy statements and in working with the fertility groups here. Clearly, there must be a transition period when doing this because there will be a decline in donations initially, but the UK has found that it increased after a number of years. Information is available about this change.

A change might also be needed in terms of the couples using assisted human reproduction, AHR, because traditionally that process has been very quiet, as the adoption process was in the early years, and the question of information, known donations and identity has not been central to the debate. It is clear that the central issue in this legislation is the best interests of the child and the identity issues that go with that. I have taken a policy decision that the child has a right to the genetic information, that it is an important part of identity and that, having allowed for a transition phase, we would then move towards what is outlined in the Bill.

From discussion with the clinics, it is clear that known donations are available. I discussed that just yesterday with the Sims clinic. It is actively identifying sources of known donor gametes, and I am providing that extra period to ensure that can happen without affecting couples in treatment.

It is true that, culturally, people have preferred anonymous donation, and that is sometimes because of the uncertainty around parentage. I would make the point that I am dealing with the parentage issues in this legislation, which should give further reassurance to couples, because the reason couples sometimes prefer the anonymous donation is due to that uncertainty around parentage. One could look at the Bill the other way as well and say that the certainty we are giving around parentage will be reassuring to people involved in AHR treatment.

I accept that a range of issues arise, and many of them will be dealt with in the broader AHR legislation, but I am conscious that it will involve change for clinics. There is no question of that. However, the needs of children must outweigh the commercial considerations of clinics. I also accept the reality that some couples who use AHR will continue to travel abroad. There will be issues around parentage when they return which will probably end up in the courts, but I have to decide on a public policy approach to this issue, and this is the beginning of outlining a public policy approach to the issues involved in AHR.

Some Senators challenged the provisions, arguing that they deny a child the right to be raised by their biological mother and a father. Some of the arguments I heard mask a deeper opposition to donor-assisted human reproduction. I would point out that there are 300,000 people in this country affected by fertility and sub-fertility issues. This is a real issue of our time and, as quite a number of Senators said, we need to address it. There is no question of that. I urge those Senators who took the view that they were against donor-assisted human reproduction to reconsider the benefits assisted human reproduction and donor-assisted human reproduction have given to so many families. It has given many couples the chance to have children and to rear those children in love and security. That is a celebration of life and family and is a perspective I would put on the floor of the House today.

The provisions I am dealing with are to do with parentage only. Senators will have an opportunity in the future to discuss these issues in a more comprehensive way, and that legislation will also deal with the surrogacy issue. I believe it was the right decision to take surrogacy out of this legislation. There are many complex issues on which we have not had public consultation, especially in regard to commercial surrogacy.

I am concerned that some of the arguments I heard in favour of a child having a right to a mother and a father also mask a prejudice against same-sex parents. As I indicated, we have very strong research that shows that children of same-sex couples, including those adopted by same-sex couples, have similar outcomes to the children of heterosexual couples. That research is very clear.

Before jumping to conclusions about what is best for children, we should ask the children themselves. When listening to the testimony of the children of same-sex parents at the Constitutional Convention, I was struck at how positive the experience of growing up in same-sex households has been for them. It was a very striking part of the presentation at that convention. As many Senators pointed out, however, our adoption numbers are very low, and the numbers of children living in same-sex households is very low also. We know from the census that there are 200 same-sex couples living together here. The statistics show that the majority of children live in a variety of other family types also, as has been described by several Senators.

A number of Senators asked why the step-parent adoption issue was not been dealt with. I would have liked it to have been dealt with in this legislation. The Minister for Children and Youth Affairs, Deputy Reilly, tells me it will be dealt with in the adoption and tracing legislation. It was not ready in time because when the Department of Children and Youth Affairs began to examine the matter, it found it was intertwined with too many other adoption issues, so that issue will be for that legislation.

The question of a hierarchy of family types was mentioned on a number of occasions. We began the process of dismantling discrimination against particular family types when we abolished illegitimacy in 1987. I do not believe I should turn back the clock to that situation in this legislation, which is in effect what is being asked, namely, that we would say there is a hierarchy of family types.

The other major issue discussed was the guardianship rights of non-marital fathers. As I have said, the Bill provides for non-marital fathers to acquire guardianship automatically if they fulfil the cohabitation requirement. That is a big change. There are court precedents regarding the definition of cohabitation, a point raised by Senator Power, and it is a committed and intimate relationship. We also have the definition in the civil partnership legislation that outlines the details of cohabitation and how it will be defined.

I have said I am adding the new provision that will make it easier for non-marital fathers to complete the statutory declaration at the registry office, which will make quite a difference. I note that a number of Senators acknowledged it will make it easier for non-marital fathers, and we will do an information campaign on it. That is an important initiative that is needed because there is poor information on it. We will also learn lessons from the pilot projects I will establish.

I have also said I will do the policy work to consider guardianship of non-marital fathers and the other issues that arise in this regard. In the Dáil debate, and I have heard it here as well, people spoke about building in exceptions but I need to do policy work to determine what those exceptions would be if we were to go for automatic guardianship for non-marital fathers.

There are a number of other issues which we will discuss on Committee Stage, so I will not deal with them now.

On the appointment of a step-parent guardian, it was suggested by a number of Senators that the appointment of a step-parent as a guardian would remove the guardianship of a non-marital father or would inhibit him from subsequently being appointed as a guardian.That is a misunderstanding of the provisions of the Bill, which are carefully designed to ensure that a non-marital father who is a guardian can continue to play a full role in the child's life. That is an important point. A father will not be removed as a guardian by the appointment of a step-parent. A non-marital father can be removed as a guardian by the court, but only in those rare circumstances where the court considers that his removal is in the best interests of the child. There is simply no question of an automatic removal. Even if the father is not a guardian at the time the step-parent is appointed, the rights of the step-parent guardian will usually be limited specifically to ensure that where the father subsequently seeks guardianship he can obtain full guardianship if that is in the best interests of the child. That is an important aspect of the provision.

Senator Power raised the issue of identity and withholding donor information. I have limited that very carefully to provide that it is only in specific circumstances. I removed the word "well-being" which Senator Power said was too broad a concept, and I have narrowed the definition so it would only apply where there is an actual risk to the safety of the child or to the donor. It would be in very exceptional circumstances.

A number of Senators raised the very relevant point of the need to develop family courts, a family welfare system and to bring forward the mediation Bill. It is my intention to bring forward family court legislation. Our approach is that there would be a family court in each division of the courts. That does not require constitutional change, only legislative change. I am keen to bring that forward. There is clearly a need for ongoing development of a court welfare system and that will require investment. Thankfully, the country is doing better and, hopefully, we can provide further investment for these services as the economy recovers and also bring forward the mediation Bill. The points raised today were very relevant in terms of needing the best possible context for this legislation where decisions are being taken about families, and there is much dissatisfaction that family courts are currently held in the middle of very busy district courts. Those points are very relevant.

Again, I thank Senators for their support for, and engagement with, the Bill. The Bill has the potential to enshrine a child-centred approach in family law, which will benefit children and families. I hope as many Senators as possible will be in a position to support the Bill.

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