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

The purpose of this group of amendments appears to be to expand the effect of the retrospective provisions allowing assignment of parentage in relation to pre-commencement donor assisted human reproduction procedures. For clarity, I want to address this issue in detail and to set out the provisions that currently apply because this is a very important issue. The parentage of a child born through donor assisted human reproduction can be assigned in the Bill under section 21 or section 22 where the following conditions are met: the child was born in the State; the donor assisted human reproduction procedure took place in the State; or, if it took place outside the State, the person or the facility which carried out the procedure held any necessary licence or authorisation required under the laws of that state to do so. I stress that this is about retrospective assignment of parentage and does not relate to the regulations that will be in place going forward as a result of this legislation.

The next criterion is that the person who is to be declared a parent was an intending parent at the time the procedure took place and the donor was not, and is not, known to the intending parents.I will go into detail on why that is the case; there is a very good legal reason. At first glance, one might question it on the grounds that it seems strange and that the donor could only be unknown. The reason for setting out these conditions is that I am clearly advised that parentage cannot be assigned if a procedure was not carried out in accordance with any law applicable in another jurisdiction or if a person can clearly and legally be identified as the parent of the child concerned. This is why my provision also stipulates that the donor must have been and remain unknown to the intending parents. Our existing legal framework does not recognise sperm donation and, therefore, if the sperm donor's identity is known he is legally considered to be the father. There is already Supreme Court case law on this point, and this is why it is not possible to provide retrospective recognition where the donor's identity is known. However, where the donor's identity is known and all the adults concerned are in agreement, the intending parents still have a route to parentage, by means of adoption. Senator Power commented on that. Adoption is an option if the proposed adoption is in the best interest of the child and all the conditions one would expect to be met, in terms of adoption assessment etc. are met.

Let me turn to the amendments proposed. Amendment No. 26 amends section 20 to specify that it applies to whether the DAHR procedure takes place in the State. It removes the requirement that the person carrying out the procedure must hold any necessary authorisation to do so.

Amendment No. 29 provides a much more extensive definition of the DAHR procedure, which would presumably include self-insemination in addition to a range of ancillary procedures. This would allow assignment of parentage in circumstances where a person undertakes procedures outside the jurisdiction that could be illegal in that jurisdiction. That is seriously problematic. My provisions will allow assignment of parentage if the procedure concerned takes place in Ireland. If it takes place elsewhere, the person who carries it out must hold any necessary authorisation.

With regard to the assignment of parentage, amendments Nos. 27 and 28 remove the stipulation that the donor be unknown to the intended parents both at the time of the procedure and at the time of an application under sections 21 or 22. I have already touched on why this cannot be accepted. Legally, there is a very strong case. Under the current law, where the donor is known he or she is regarded as the parent of the child. This amendment is asking me to remove that individual as the parent of the child retrospectively. He or she cannot alter the child's parentage with retrospective effect by transferring that parentage through a process other than adoption. Adoption is the only process whereby that can happen.

Our provisions concerning the prospective assignment of parentage under section 5 have been specifically framed to require the donor to consent clearly in advance of the donation. The critical point concerns the donor not becoming the parent of the child. Senator Healy Eames raised a number of points on this. The consent is necessary before donation in order that the parentage provisions in the legislation can be fulfilled. In our provisions, if the person does not so consent, he or she will be regarded as a parent rather than as a donor. That is why counselling is so important. These points were raised. The donor must fully understand the position. Currently, this area is completely unregulated. There is no counselling or discussion of the implications of the donation. Now that we are to have regulation in this completely unregulated area, we want the donor to be aware of the consequences for him in regard to parentage.

I have considered very carefully the provisions allowing retrospective assignment of parentage. They are very carefully balanced, on specific legal advice, to ensure the rights and responsibilities of natural parentage cannot be removed arbitrarily. These amendments would arbitrarily remove parentage retrospectively. One could imagine the insurmountable practical and constitutional difficulties of doing that. Where the parents of a child are clearly identifiable individuals, the retrospective provisions cannot be used. The only path to parentage for the intending parents in those circumstances is adoption. However, with the new consents, the move from anonymous to identifiable donation, the parentage provisions, counselling and a full discussion of the implications of what people are doing, parentage can be assigned. This is because one is building in legally all the criteria that need to be met. They are strong criteria in the interest of the child. One cannot remove the parentage retrospectively.

Senators will accept the constitutional reasons one cannot retrospectively remove parentage. With regard to future regulation, we are laying out very clearly the procedures that need to be followed. One should remember that this area is completely unregulated. Internationally, the move is increasingly towards the kinds of approaches we have taken in this legislation. The section in the Department of Health dealing with this matter is the bioethics section. It has examined very carefully international evidence. Anything I am doing in this legislation is in line with the policy that has been adopted by the Department of Health and that has been supported by the Government through the heads of the broader AHR legislation that is to be developed. I hope that is helpful in explaining why I cannot accept the amendments. I understand the circumstances Senator Power is trying to deal with but it is legally and constitutionally impossible to go in this direction retrospectively.