Averil Power (Fianna Fail) | Oireachtas source

It is important to be clear that we are talking only about situations that arose prior to the enactment of this legislation. The Minister referred to the possibility of recognising procedures that were legal, such as self-insemination, but the reality is that such practices did occur in the past. Such circumstances arose where same-sex couples, for example, were prohibited from availing of assisted human reproduction services in clinics in Ireland and consequently made other arrangements. We must recognise the reality, irrespective of how a child came into the world. The rest of this Bill is based on that premise.

I appreciate that the Minister does not want to encourage the specified practices in the future. I support that but we must do our best for the children conceived in the past through DAHR. Irrespective of how they were conceived, we must try to provide certainty and supports to them. It is from this point of view that these amendments were drafted.

The Minister said one cannot retrospectively remove parentage. The word "parentage" is inappropriate where a donor is prepared to testify in court that he never intended to be a parent, that he does not now intend to be a parent, and that he has never had any parental relationship whatsoever with the donor-conceived child. It is inappropriate where the child's actual parents, who might have been parenting the child or young person for many years before the issue came before court, are prepared to testify to their parental relationship with the child. To apply the word "parentage" and assign the associated role to the donor is inappropriate in these circumstances. It is important to point out that a donor of sperm, for example, has no constitutional rights, any more than an unmarried father has constitutional rights in Ireland. The courts have made it very clear that a sperm donor is treated in law as being akin to an unmarried father and, as such, has no rights. Therefore, I do not accept it is a constitutional issue. I accept there is a legislative issue but that the legislative position could be changed by alternative legislation, such as the amendments we are tabling here today.

This is an important issue. The provisions are unfair to children who were conceived through assisted human reproduction using anonymously donated sperm.The rest of the Bill discourages anonymous donations and argues as to why they are wrong. However, the children who are going to be assisted by the legislation are those who are conceived using anonymous donations. For those born to known donors, nothing will be done in terms of parentage. I accept adoption is an option but it is a more complex option and I do not accept it is necessary.

I appreciate the Minister has examined the issue and has come up with an alternative approach but that approach is flawed. I do not accept that it is constitutionally necessary for the reasons I have already set out. The most important thing is what is in the best interests of the child. These provisions would only apply where everyone is prepared to go into court and attest to the fact that there is a clear arrangement as to who was and who was not to be a parent. The courts are best placed to make a determination on the best interests of the child in those circumstances.