David Norris (Independent) | Oireachtas source

This Bill is very welcome and I congratulate the Minister on introducing it. My colleagues and I have received many submissions from members of the public, most of them female couples. This is a very important matter and I am glad that the Minister is addressing it. She does say that some of this depends on the introduction of Parts 2 and 3 of the Children and Family Relationships Act 2015. I note that the Minister for Health is working on that. I very much hope that this will come into play pretty rapidly. I note that section 13 makes a technical amendment to section 27(5) of the Children and Family Relationships Act 2015 that will allow the Minister for Health to commence Parts 2 and 3.

It is very important, in welcoming this Bill, to herald some of the problems that may be experienced under the Children and Family Relationships Act 2015. I would very much like the Minister to be kind enough to take this point back to the Minister for Health for his consideration. We are talking about donor-assisted human reproduction, commonly known as DAHR, and surrogacy. Unfortunately, there are several provisions in Parts 2 and 3 of the Children and Family Relationships Act 2015, once commenced, and the assisted human reproduction Bill 2017, once enacted, that will operate to treat certain children less favourably than others. These issues are not only of concern to children born to same-sex parents but to many other children who are born through DAHR and surrogacy. It is acknowledged that the children's right to identity is of primary concern and of great importance but it is important to acknowledge also that upholding the child's right to identity does not require that a donor who has no desire or intention of paying any role in the child's life should be recognised as a legal parent. This is a nonsense. If there is a donor, the material for creating the child is donated but why should that person, who has expressed no interest and does not want to be involved, be recognised as a parent? That is problem number one.

I have several recommendations, on which I have been briefed, to put before the Minister. First, when a child is conceived through non-clinical DAHR, procedures should be in place to recognise a second intended parent as a legal parent. Second, retrospective application for a declaration of parentage in cases of DAHR under section 20 of the Children and Family Relationships Act 2015 should be possible where a known donor was used. Third, to ensure that the intended parent is recognised as a legal parent, the second intended parent, in cases where she provides her egg to enable the conception of the child, the words "unless the donor of the gamete or embryo is the spouse, civil partner or cohabitant of the mother" should be added to all sections of the Children and Family Relationships Act 2015 that currently provide that a donor of a gamete or embryo used in a DAHR procedure is not the parent of the child born as a result of that procedure. The Government should consider possibilities for recognising DAHR conducted abroad after Parts 2 and 3 of the Act are commenced because that is another area which is still grey. Provisions should be enacted to retrospectively recognise the legal parentage of children born through surrogacy before the assisted human reproduction Bill is enacted.

The assisted human reproduction Bill should provide recognition of the legal parentage of children conceived through surrogacy conducted outside the State after the assisted human reproduction Bill is enacted. Pre-conception court orders should be provided for in the assisted human reproduction Bill to provide parental approval as a surrogacy arrangement and to determine the parentage of the child before conception takes place with no requirement for a parental order to be obtained after the birth of the child. Some people suggest that adoption is a solution here. I do not accept that at all. Adoption was not designed to be used in cases of assisted human reproduction or surrogacy and does not accurately reflect the reality of family life. I do not see any reason why it should be used.

Taking, for example, the question of the known donor outside of a clinical setting, I would like to put a case study on the record. Elaine, the birth mother, and Jenny, conceived their baby, a girl, at home using sperm donated by Jenny's brother. They had no problem conceiving and did not need any clinical intervention. Their donor was happy to give consent to both women being recognised as the legal parents. As their baby is only three months old, Jenny is unable to seek guardianship under the Children and Family Relationships Act 2015 because the child is less than two years old. Therefore as the law stands, she has no legal relationship to her child and is unable to establish a legal relationship until her daughter is two years old. That is a really significant gap where there is no legal parent. That needs to be addressed.

Other jurisdictions have considered these situations and, for example, in the United Kingdom, a statutory presumption of parentage operates in favour of same-sex married couples and civil partners. Let us consider the situation of a known donor in a clinical setting in respect of a child conceived before Parts 2 and 3 of the Children and Family Relationships Act 2015 are commenced. For children conceived prior to the commencement of Parts 2 and 3, parentage may be retrospectively allocated to an intended parent not previously recognised as a legal parent through application for a declaration of parentage under sections 21 or 22 of the Act. In order for the declaration to be granted, the donor must have been and remain unknown to the intending parent at the time of the application. This is daft. Why should it be unknown? That is an unnecessary criterion to introduce into the legislation and it should be got rid of, particularly in light of the fact that the word "unknown" is not defined in the legislation so it also is in a grey area.

This approach penalises couples who choose to use a known donor in order to safeguard their child's right to identity. I can cite another case study in which Jane, the birth mother, and Sara have an 18 month old baby boy, Jake. Jake was conceived in a fertility clinic using sperm provided by an identifiable donor. Jane and Sara want Jake to know about his origins and they have obtained identifying information about the donor in order that they can educate Jake about his genetic background. This is really important. One needs to know these things. Why have this thing about unknown donors? There could be medical situations involved, genetic disorders and all this kind of stuff. This information should be available and should be known. The women have never met the donor but know his name and last known address. Jane is the birth mother of Jake and is recognised as his legal mother. After Parts 2 and 3 of the Children and Family Relationships Act 2015 are commenced, Sara will be unable to obtain a declaration of parentage listing her as the second legal parent because a known donor was used.

For balance and diversity, I would like to end with a male case study. Laurence and Eddie have six year old twins which they conceived using a surrogate mother in the United Kingdom, not in Ireland. Eddie is the legal parent of the twins. The woman who was the surrogate for the couple is in regular contact with the family and is happy to consent to Laurence being recognised as the twins' legal parent. One of the children has significant health issues and needs regular medical attention. While Laurence has guardianship of both children, this does not recognise his parental relationship to them, which has huge implications for the family.As Eddie explains: "I have a little boy with a rare genetic disorder which will mean that he will need care after his other dad's guardianship ends when he is 18". There is another crux there.

I only very briefly addressed the terms of the Bill the Minister is introducing to the House, but it is very important to take this message to the Minister for Health in advance of the finalisation of plans, which I understand are well under way.