Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 51:

In page 34, line 35, after “ability” to insert “and intention”.

This amendment, which we also discussed on Committee Stage, relates to the obligation on a donor assisted human reproduction, DAHR, facility to retain and provide certain information and what happens when the Minister is satisfied that the DAHR facility is not in compliance with his or her obligations under section 28. What I find remarkable about the law as the Minister has proposed it here is how timid and facilitating it is, as this legislation is time and time again, in terms of the DAHR facilities. While the entire legislation is premised on the idea that it shall not be possible to procure gametes anonymously, it is clear that the Government does not really mind if it does happen. The Government does not regard it as a terrible intrusion on the rights of the child or an injustice to the child if a child is denied the knowledge of who are his or her genetic parents. I say that because the Minister is so timid in her approach to the clinics. What the law provides is that the Minister, where satisfied that the operator of the facility is not complying, may issue a direction to the operator of the facility requiring them to comply. The Minister has the option of applying to the Circuit Court for such an order requiring the facility to comply so the Minister can give the direction or go to the Circuit Court for the direction. Either way, if the Minister is satisfied that his or her direction is not being complied with, the Minister may apply to the Circuit Court for an order. The Minister can either go to the Circuit Court for an order in the first instance or, his or her direction not having been complied with, apply to the Circuit Court anyway under subsection (3), and the Circuit Court may make an order directing the operator of the clinic to comply with the obligations.

There is a second stage. Where the Minister becomes satisfied that this order, having been given by the courts, is still not being complied with, he or she can go to court again for a second type of an order under subsection (5). That order is from the court, having satisfied itself that there is no compliance with its earlier order, prohibiting or restricting the performance at the DAHR facility of DAHR procedures only; they can fire ahead presumably with any other assisted human reproduction. Even though they are flouting the law it is clearly fine for them to carry on doing other AHR procedures for some reason. However, they will be restricted from doing DAHR until such time as they satisfy the court of their ability to comply with their obligations. They do not even have to satisfy the court of their intention to comply with the obligations but merely their ability to comply. It might still be their intention not to comply or they might be negligent about saying whether they will comply. It would seem that it is a question of their ability to comply that is the only concern of the court.

There is further provision where the operator of the facility, if the court makes an order so prohibiting or restricting them, may go to the High Court to appeal on a point of law and the determination of the High Court shall be final and conclusive. I find this remarkable because there is no question that their failure to comply is, in the first instance, an offence and there is no question of their failure to comply at the second stage being an offence, merely that they may be prohibited or restricted from operating only DAHR, and even then only prohibited until such time as they satisfy the court of their ability. Either this is very sloppily worded or the intention is to not interfere with the clinics or the facilities too much.

What I have proposed in amendment No. 51, and we will come to amendment No. 52 shortly but I have substantially spoken to it now, is that it would not be a matter of satisfying the court of their ability to comply with their obligations under section 28 but their ability and intention to comply.