Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I am delighted to be in a position today to bring the Health (Assisted Human Reproduction) Bill before Seanad Éireann. This is ground-breaking legislation. For hundreds, and possibly thousands, of families around Ireland, it will provide the route to full parentage for children, mums and dads all over our country. It will introduce, for the first time in Ireland, a regulatory framework for assisted human reproduction, AHR. One of its many benefits will be the extension of fully State-funded IVF to intending parents using donor materials, including same-sex female couples.

The legislation will support thousands of people in Ireland who wish to have children through AHR. It will clarify the legal position of those children and provide an ethical framework for research and new reproductive technologies. It introduces pathways through which surrogacy can be pursued with full parental rights into the future.

All considerations in respect of AHR treatment and surrogacy are underpinned by the protection of the rights, welfare and best interests of any children born as a result. We have worked to ensure that identity information of children is preserved and to safeguard against the sale, trafficking and exploitation of children. The provisions of the Bill are designed to prevent abusive or exploitative practices involving surrogate mothers and to protect their rights, interests and welfare.

I am not aware of any other jurisdiction globally that has legislated for a type of process for the regulation of international surrogacy similar to that provided for in this Bill. The legislation will provide clarity and peace of mind for many who have been in limbo for far too long and for those considering assisted human reproduction journeys, including surrogacy.

This Bill is the result of years of work and intensive engagement between my Department and other Departments, the Oireachtas, including Members who are here today, and civil society groups, to insert new provisions on international surrogacy and to ensure the provisions we have for domestic surrogacy and assisted human reproduction work for mums, dads and children.

The complexities of these policy areas mean it has not been possible to address everything. Some of the matters that arose during Committee and Report Stages in the Dáil require further consideration. In this regard, I inform Seanad Éireann that I propose to bring forward a supplementary Bill in the autumn. I intend that the general scheme with heads of Bill will be approved by the Government and published before the summer recess. This amending Bill will, among other things and subject to further consultation with the Office of the Attorney General, provide clarity for Irish residents undertaking donor-assisted procedures abroad to obtain a declaration of parentage and for Irish citizens domiciled abroad who have undergone surrogacy or donor-assisted human reproduction abroad to have their parentage recognised where it is not already. This will be achieved by amending other existing legislation.

The approach we have taken with this amending legislation is to make it as inclusive as possible. We have had constructive engagement with Members of Seanad and Dáil Éireann and civil society groups who have raised questions around how we can make the legislation as inclusive as possible, include procedures that are done abroad and include Irish citizens who are living abroad. A huge amount of work has been done with a very clear intent, while always putting the child front and centre and always considering, when it comes to surrogacy, protection of the surrogacy and being able to include as many families - mums, dads and children - as possible.

I would like to address one issue now. In recent days, a concern was brought to my attention by Senator Seery Kearney. I know this has been an issue for some of the parents who are very much looking forward to going to the courts to achieve parental orders, which of course they will. The concern regards the burden of proof required for retrospective parental order applications. The Bill states that the intending parents should meet various criteria, one of which is to establish that the surrogate lived in the jurisdiction concerned for at least one year prior to entering the surrogacy agreement. The policy intent here is clear. An intending parent or parents must make reasonable efforts to establish this. However, it will inevitably be the case that in some applications this will not be possible, for example, if the surrogate cannot be located. In this case, the clear policy position of the Government is that the courts have discretion to grant the parental order anyway, once the court is satisfied that reasonable efforts have been made. The legal advice I have is that the Bill, as currently drafted, already provides this discretion to the courts. However, I know there is genuine concern among some mums and dads who have waited years for these parental orders. For this reason, I am taking an additional step. As well as having legal advice that this matter is already covered, I am stating very clearly in Seanad Éireann that this is the intent of the Bill. I will also include a further amendment in the amending Bill to ensure there can be no misinterpretation on this issue.

There are other issues such as allowing for dispensing with the consent of surrogate mothers or intending parents in surrogacy in exceptional circumstances and how best to deal with the interim period, which is a live issue. I know there are intending mums and dads whose timing, in terms of embryo transfer, would ideally be in this interim period. We are very aware of their concerns and we are listening to them very carefully. In fact, I have just had a conversation in the last half hour about them. First, we are going to have as short an interim period as possible. The interim period will extend from the commencement of the Bill, which I would like to see happen in July, to the establishment of the regulatory authority. I am putting my Department under immense further pressure to get the regulatory authority set up early in the new year. In the normal course of events, the hiring process would not start until the authority was fully established under law and various statutory instruments were in place. We are not doing that. We are taking a faster approach. We are looking at hiring interim teams and establishing the authority on an interim basis while the amending legislation proceeds. Step one, therefore, is to have as short an interim period as possible.

There are then some decisions that need to be finalised. Complex considerations around this issue are the reason we are considering further in the amending legislation what happens in the interim period. Unfortunately, we will have a period between the retrospective commencement and the date on which the authority is fully set up.

I say to intending parents that I hear them and the Government hears them. We know that for some of them the timing is such that they may be ready for embryo transfer in September or October. We know they may have a genuine concern about the surrogate moving on to work with different intending parents. We hear them loudly and clearly. These concerns have been brought to me and we are looking to make this as inclusive as possible. Ultimately, everything we are trying to do here is in the interests of the child and the current or intending mums and dads.This Bill also will support parents in the future undergoing AHR treatment. The legislation will support the health and well-being of all children born through AHR. Children born through surrogacy will, under this legislation, have the right to access information on their gestational and genetic origins, and this is very important.

The commencement of the legislation will also support further expansion of the initiative to provide AHR treatment, including IVF, in the public health service. I was happy to introduce publicly funded IVF for the first time into Ireland last September. One of the most important features of this Bill in that regard is to allow for the establishment of a new independent regulatory authority, the assisted human reproduction regulatory authority. Somewhat confusingly, it is referred to it today as "AHRRA", because that is the acronym, which, of course, sounds like "Aire", the Irish word for "Minister", which is used liberally as well. For this debate today, the "regulatory authority" is what I will call this institution, rather than the AHRRA.

The Bill, as passed by the Dáil, comprises 198 pages and 234 sections. This underpins the complexities involved. It also demonstrates the substantial considerations and work completed to get us to this point.

Part 1 of the Bill covers standard provisions. Part 2 sets out certain general criteria. Part 3 covers a broader range of matters relating to gamete and embryo donation and the issues of parentage and non-anonymous donation. Part 4 allows for a person under the age of 18, who is due to undergo medical treatment which is likely to cause a significant impairment to his or her fertility, to be provided with AHR treatment to facilitate the subsequent storage of his or her gametes or tissues. Part 5 outlines the circumstances under which AHR treatment providers will be permitted to offer posthumous assisted human reproduction. Part 6 sets out the strict criteria under which specific types of pre-implantation genetic testing, PGT, human leukocyte antigen, HLA, matching and sex selection would be permitted. Part 7 sets out the circumstances under which domestic surrogacy may be permitted in Ireland. Part 8 sets out provisions for the establishment of the regulatory framework under which Irish residents could partake in surrogacy arrangements in other jurisdictions and avail of State assignment of parentage granted by the Circuit Court. Part 9 provides for the establishment of the new regulatory authority. Part 10 includes detailed provisions in respect of the functions of the regulatory authority related to licensing. Part 11 contains further details in respect of the functions of the regulatory authority related to enforcement of compliance. Part 12 sets out provisions for recognition of certain past surrogacy arrangements, both domestic and international. These legislative provisions seek, insofar as is appropriate and possible, to implement the recommendations of the special Oireachtas joint committee on surrogacy in this regard and are also informed by the Verona principles. Part 13 provides for consequential and other amendments.

Schedule 1 lists the matters that the regulatory authority may consider in determining licensing of providers. Two of the Schedules deal with the regulation of embryo and stem cell research in that Schedule 2 lists specific types of such research which are prohibited under the Bill, while Schedule 4 sets out criteria that the regulatory authority shall have regard to in determining licence application to undertake research involving embryos and stem cells. Schedules 3, 5 and 6 list criteria that the regulatory authority shall have regard to in determining licence application to provide AHR treatments. Schedule 7 provides details in respect of redress for an employee of a licence holder who has been penalised or threatened to be penalised by his or her employer after reporting potential contraventions of that employer's licence.

I was not watching the debate in terms of the Seanad and timing. If I could explain, because it is the first debate we have had in the Seanad on this, we are doing something somewhat unusual with this Bill. In the normal course of events, matters which are still under consideration or which we are still teasing out with the Attorney General would be included in the primary legislation in the single Bill. There is a reality here, which is there will be a general election some time in the next five to nine months. There are hundreds, and some people tell me thousands, of families of families around Ireland today whose children's mums and dads do not have full parental rights within their family. There is an urgency to this Bill. I and the Government committed to these families that we would give them a route through the courts to full parental rights and give these children all of the protections and all of the rights that these parental orders have with them. I wanted there to be no question but that this Bill would be passed and so I took a decision to say we have some outstanding legal complexities. We are working them through. There are three Departments involved, namely, the Departments of children and Justice and my own Department of Health. The Attorney General is closely involved. Some of them pertain to an interim period, some of the pertain to the prospect of issue but I wanted us to be absolutely clear that the retrospective piece, which we will commence, would happen in this Oireachtas term because, as people who are watching may or may not know, when a general election is called all legislation falls. It does not matter how close it is to the finishing line, it is gone and you have got to go right back to Second Stage in the Dáil. Any new Government coming in and, as Senators will appreciate, any health Minister coming in, will be met with a huge number of demands and maybe this is a priority for him or her and maybe it is not. It would be for me, were I to be reappointed, but we do not know that. Therefore, I have taken a slightly unusual approach to this to say we will get this through now and that is why there is an urgency to this. The Dáil and Seanad will rise in the coming weeks. We are only on Second Stage. We still have Committee, Report and Final Stages to do in the Seanad and I wanted to make sure, for all of those children and for all of those mums and dads, that this is done and they have certainty, which they have waited for and for which they have campaigned for so long. That is why we are approaching it in this different manner to the usual way we might do some of these Bills.