Rónán Mullen (Independent) | Oireachtas source

There is a concept well known to the law called "strict liability", and the Minister does not need me to explain it. It is when something occurs that is of such gravity that a party is liable, regardless of their intent. That applies in tort law but it also applies to a certain limited extent in criminal law where the mere commission of an act or the failure to commit an act in a certain case will attract liability.

The Minister referred to section 31, which provides that a person commits an offence if he or she obstructs or interferes with an authorised person or a member of the Garda Síochána in the course of exercising a power conferred on them by this legislation or where a person fails or refuses to comply with a request or requirement, or to answer a question asked by the person. It could hardly be otherwise but that would be an offence. What is remarkable is that there is no comparable offence grounded in the failure to keep records themselves, given the awesome consequences that would have for certain people. That is why I asked whether the Government is in the pocket of the clinics. I think it is, because otherwise some kind of offence would be stated here. If the Senators who think it is vexatious that I should say this, let them tell me why it is acceptable that it is not an offence to act so negligently or so recklessly, or intentionally so wrongly, whatever it be, so as to deprive the child of a chance of discovering who they are. I would like to hear them try to justify that because that is what is at stake here.

While I sympathise with Senator Gerard P. Craughwell's comment to a degree when he says we should avoid in any way tainting those whose pain of infertility and whose desire to have a child causes them to spend money, we have all been at pains in the discussion of this legislation to make it clear that we are casting no judgment on anybody. We all understand the desire to have and love and rear a child is real and is rooted in the human experience and it is laudable, but it is not always possible to comply with that desire where there are supervening questions of rights of other parties. That is what these amendments are about. It is about recognising there is a greater right, which is the right of the child to be brought up, where possible, by their own genetic parents and that should not be deliberately impeded.

Where money becomes relevant is in my justifying an amendment that would fix criminal liability, not on an individual who was without any strength of arms to defend themselves, but on a corporate entity. There are not many, if any, of these clinics that I am aware of that are operating voluntarily. They are commercial entities so let us call a spade a spade, otherwise we will do the public a disservice. They are commercial entities and they ought to be targeted by the law where they do not comply with the clear obligations of this legislation. That is all this amendment is about.

Amendment put.