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

The purpose of this amendment is to change the definition of a DAHR procedure so that it includes certain procedures taking place outside the State, as the Senator said. The intended effect is presumably to allow the assignment of parentage under section 5 where a child is born in the State as a result of a DAHR procedure which takes place outside the State.

I considered this issue in the drafting of the Bill and I got legal advice from the Attorney General in regard to it because I was very conscious, as the Senator was, that when children are born through DAHR procedures which occur outside the State, we are effectively unable to assign parentage in section 5. The obvious difficulty is that there is no possible means of verifying compliance with Parts 2 and 3 of the Bill as we are now deciding that parentage will be assigned and consent will be given. If it is outside the State we do not have the authority to check the authorised officers. For example, the inspection powers of the Department of Health, or an authority in the future, are under section 1. They have no authority to act outside the State and to exercise their inspection powers. The Minister for Health does not have any authority to direct compliance by a DAHR facility outside the State. That is obvious and is a matter of law. This means the State has no means of safeguarding and securing the identity rights of children born through a DAHR procedure taking place outside the State and thus cannot purport to assign parentage under section 5. This situation is not unique to Ireland. Similar issues arise in other jurisdictions where couples undertake fertility treatments in one state and the child born as a result of those treatments is born in a different state.There are no easy or useful answers to clarify the parentage of these children. Where there is, for example, the donation of an egg and the mother gives birth in this countrym, she will be the mother under Irish law, as we saw in the recent court case.

I cannot accept the amendment because the State cannot provide the necessary guarantees to underpin identity rights, but I do have two observations to make in answer to the question. Several Senators mentioned last week that this underscored the need for a harmonised international approach to the issue of parentage in cases of donor assisted human reproduction in the interests of the intending parents and the children to be born. The Hague conference on private international law is undertaking an important project in examining these issues and will report on it, but it will take some time to come to fruition. As Senator Jim Walsh mentioned last week, there is a need for co-ordinated action at EU level to begin to discuss this issue to have a uniform approach. Although the parentage of children born in the State as a result of procedures taking place in other states cannot be assigned under section 5, the parents will have certain legal options. They may, for example, be able to jointly adopt the child under the amendments being made to the Adoption Act 2010 in order to secure their joint legal relationship with the child. This is important. It ensures there will be a path to parentage in the best interests of the child; therefore, there are options. The second member of the couple will be able to apply to be a guardian of the child with the possibility of becoming a full guardian. To repeat, where there is an egg donation and the mother gives birth in Ireland, she will be deemed to be the mother of the child.