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

I cannot understand why Senator Mullen would use the phrase "timid" when the reality is that the provisions in the legislation will allow the court, if the failure is ongoing, to order the clinic to cease providing donor assisted human reproduction services. That will have serious financial and reputational repercussions for the clinics concerned and would be a strong incentive to comply with the requirements set out in section 28.

Section 32(5) sets out that the courts can, by order, restrict the performance of DAHR procedures if the operator is not complying with his or her obligations under section 28, and the restrictions may not be lifted until the operator satisfies the court of his or her ability to comply with the obligations. This amendment would specify that the court must also be satisfied of the operator's intention of complying.

The amendment appears to be predicated on a belief that the court will lift any restrictions that have been imposed on the operator if the operator proves that he or she has the technical capacity to comply with the obligations, regardless of whether he or she is going to comply. That is simply not the case. The legal obligation to comply is clearly set out in section 28, and section 32 provides the Minister and the court with remedies if the operator fails to comply. There is absolutely no question of these remedies being undermined by the operator somehow proving technical capacity to comply with obligations while continuing in practice to flout those obligations.The Senator has also spoken on the next amendment, which would create a specific offence regarding a DAHR operator's failure to comply with its obligations under section 28 to keep and retain certain records. The Senator wants to make sure there are consequences but, as I said, section 28 in subsection (3) already very clearly provides remedies for failure to comply. These provisions enable the Circuit Court to order compliance. If there is an ongoing failure the Minister may make a further application to the court under subsection (5).