David Norris (Independent) | Oireachtas source

I move amendment No. 4:

In page 8, between lines 2 and 3, to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):

‘(6) When a child is conceived through non-clinical Donor Assisted Human Reproduction procedures should be in place to recognise a second intended parent as a legal parent.’.”.

What I am doing with these amendments is making up for deficiencies, gaps and lacunae in the legislation.

Amendment No. 5 states:

"In page 8, between lines 2 and 3, to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):

‘(6) Retrospective applications for a declaration of parentage in cases of Donor Assisted Human Reproduction should be recognised where a known donor was used.’.”.

This is an extraordinary exclusion where the known donor is actually excluded I do not understand the logic behind that at all.

Amendment No. 6 states:

In page 8, line 3, to delete “” and substitute the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):

‘(6) The second intended parent in cases where she provides her egg to enable conception should be recognised as a legal parent.’.”.

Finally I refer to amendment No. 7, which reads:

In page 8, between lines 3 and 3 [I do not understand that], to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):

‘(6) When a child is conceived through surrogacy outside the state procedures should be in place to legally recognise the parentage of the child conceived.’.”.

I have received several messages from people who conceived a child in Canada, Great Britain or wherever. Their parentage is not recognised. Although the Bill is very welcome and is an improvement, there is no question but that certain issues are not properly addressed in it at all. For example, options for lesbian and gay families who perform at-home insemination are not contemplated at all. There is also a need to provide couples who use a known sperm donor, as in the case I referred to earlier, and avail of fertility treatment outside of Ireland. I have a letter from a male same-sex couple saying that as it stands the current proposed assisted human reproduction Bill, more specifically Part 6, is not fit for purpose as it will exclude all families that have gone through surrogacy journeys abroad and all future families that choose to go abroad.

I have received another email from a same-sex male couple that has created a family through the process of surrogacy in Canada. This correspondent notes that no legislation currently in place or due to be enacted includes his family or many families like his and recognises his husband and him as the legal parents to their son. For this family to be recognised, the general scheme of the assisted human reproduction Bill 2017 must include same-sex male families who have used international surrogacy as a way to create their families. This is a glaring omission from the Bill and I would like to see it rectified.

I have received another message from a female gay family. My correspondent and her wife live in Dublin 7. They are a married same-sex couple with one daughter, Catherine, who is six months old. One of the couple, as the birth mother of their daughter, is currently considered a single parent. Her wife has no legal connection to her daughter. Their daughter is classified as having a single parent and has no right to one of her mothers. This couple's only option at the moment is to wait two years and apply for guardianship, which expires at the age of 18 anyway and does not give full parental rights. Once the Children and Family Relationships Act 2015 is fully commenced, perhaps in 2019, this couple may also have the option of applying for step adoption after two years, but this can take up to seven years. There is an enormous gap in that process and I do not think that is acceptable.

The four amendments I have put down are governed by a principle. It is recognised internationally that the principle that underlines all these items of legislation should be the best interests of the child. It does not hinge on the behaviour of the parents or where the child was conceived. The child has no control over that. Why should a innocent child be victimised for something over which they have no control? The best interests of the child are paramount in this situation.

I would like to look at a number of the cases. First, there are cases involving a known donor outside of a clinical setting. In other words, there has been a non-clinical intervention. I will put such a case on the record. I note that non-clinical procedures are currently excluded from the parenting provisions in the Act. The result is that children conceived through donor-assisted human reproduction, DAHR, outside the clinical setting do not have a legal relationship with the second intending parent at birth. Children conceived through DAHR outside the clinical setting are therefore disadvantaged when compared with children conceived through DAHR in a clinic by virtue of the circumstances at conception. This is greatly unfair to the child involved. I will put a case study on the record.

For the purposes of informing the public, insofar as any members of the public are watching this, it is important to put a human face on the situation. Nothing does that better than a case study. Elaine, the birth mother, and Jenny conceived their baby at home using sperm donated by Jenny's brother. They had no problem conceiving and did not need any clinical intervention. The donor is happy to give consent to both women being recognised as legal parents, that is, there is no objection from the sperm donor. As the baby is only three months old, Jenny is unable to seek guardianship under the Children and Family Relationships Act 2015 as the child is less than two years old. As the law currently stands she therefore has no legal relationship with her child and is unable to establish one until her daughter is two years old. There is a very considerable gap there which needs to be addressed.

We can learn something from other jurisdictions. Some address this issue by extending a statutory presumption of parentage to some couples. In the United Kingdom, for example, a statutory presumption of parentage operates in favour of same-sex married couples and civil partners but not cohabiting couples in cases of donor insemination. As such, the spouse or civil partner of the birth mother is automatically regarded as the child's second legal parent, regardless of whether the procedure takes place in a clinical or non-clinical setting. In British Columbia a person who is married to or in a marriage-like relationship with the child's birth mother at the time the child is conceived, is deemed to be the child's parent unless it is shown that he or she did not consent to be recognised as such. Here are two other jurisdictions in which the matter is addressed clearly and the rights of both parents are established.

Then there are cases involving a known donor in a clinical setting. Again, I fail to understand why the fact that the identity of the donor is known should restrict the rights of the child. That is not fair. For children who were conceived prior to the commencements of Parts 2 and 3 of the Children and Family Relationships Act 2015, 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 and 22 of the Act. In order for the declaration to be granted, the donor must have been and must remain unknown to the intending parents at the time of the application. If the Minister supports the existing situation, I would be interested to know if she can say why it is important to remove a known donor. Again, I have a case study.

Jane, the birth mother, and Sarah have an 18 month old baby boy, Jake. Jake was conceived in a fertility clinic using sperm provided by an identifiable owner. As Jane and Sarah want Jake to know about his origins, they have obtained identifying information about the donor in order that they can educate him about his genetic background in an age-appropriate manner as he grows up. I note that this is also important for medical reasons. Another of my corespondents has a child with a genetic disorder. It is very important for them to understand and know. Jane and Sarah have never met the donor but know his name and last known address. Jane is the birth mother of Jake and is recognised as the legal mother. After Parts 3 and 4 of the Children and Family Relationships Act 2015 are commenced, Sarah will be unable to obtain a declaration of parentage listing her as a second legal parent simply because a known donor was used. I do not understand that at all.

Then there is the question of fertility treatment which is received abroad. I have corresponded with people who have had this procedure done in Canada and in the United Kingdom. Section 20 of the Children and Family Relationships Act 2015 provides that application for a retrospective declaration of parentage may be made in respect of a child conceived before Parts 2 and 3 of the Act commenced, through DAHR performed in the State or outside the State. For children born after Parts 2 and 3 are commenced, the procedure must be performed in the State. I do not understand that. These procedures have quite a pedigree in places like the United Kingdom and Canada, so why they should not be recognised I simply do not know.

I will provide another case study. Sue and Theresa initially attended a Dublin clinic for assisted human reproduction, AHR, treatment. When significant fertility issues were identified they had to look abroad for further treatment. In other words, they did not have a choice. They had to look outside the country of their residence if they wanted to have a child at all. Their daughter was born in early 2018. As she was born before the commencement of the Children and Family Relationships Act 2015, Theresa will be able to apply for retrospective declaration of parentage naming her as the legal parent. Here is the significant point. The couple has a number of embryos in storage. They represent a possibility that has not been entertained or acted upon so far. If the couple use these embryos to conceive a genetic sibling for their daughter, they will not be able to apply for parentage under the Children and Family Relationships Act 2015.That is also something that needs attention.

Under the assisted human reproduction Bill, only domestic surrogacy will be permitted once the legislation is enacted, but that is very restrictive. There is no provision in place to recognise the parentage of children born through surrogacy before the Bill is enacted and commenced. The child has no control over the circumstances of conception and should not be disadvantaged by virtue of the fact that he or she was conceived by surrogacy abroad. Again, I return to the principle of the best interests of the child. The child has no responsibility for the activity of the parents. He or she is not culpable and should not be discriminated against as a result. It is in the best interests of the child for his or her relationship with the intended parents to be legally recognised. This has been recognised by the UK courts, with Mr. Justice Hedley finding that "...it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised, at the very least, by a refusal to make an order ... transferring parentage to the intended parents." This is a senior judge in Britain arguing that the welfare of any child would be gravely compromised, at the very least. That is a very significant point.

I hope my remarks have persuaded the Minister to accept some of the amendments at least.