Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I thank the Senators for submitting this group of amendments. On amendment No. 1, I do not agree with the premise that an adoption application involving a child not genetically related is exactly the same as a surrogacy application involving a potential child who will be genetically related to at least one of the intending parents or possibly both of them. I am satisfied that we have the balance right as regards the safeguards in place and the requirements to be met by intending parents as part of the dual approval system for domestic surrogacy in order to best protect the rights and welfare of all parties involved.

Amendment No. 4 would duplicate in section 16 the requirement already contained in section 17 in relation to assisted human reproduction, AHR, treatment not being provided unless the provider is satisfied there is no significant risk of harm or neglect to the child.

In the context of amendment No.10, section 59(2) makes clear that a surrogate mother has the same rights as any other woman in respect of her pregnancy. These include the right to manage all aspects of her health during the pregnancy. It is not considered necessary to specifically refer to termination of pregnancy here, while the stipulation in section 26 that any woman shall, as standard practice, only be offered a single embryo transfer also applies to surrogacy cases.

On Amendment No. 11, the intending parents must have received appropriate counselling and legal advice prior to applying for approval of a surrogacy agreement. In addition, section 56(4) provides for the intending parents to give an undertaking that they shall take all necessary steps to provide care and ensure the welfare of any child born as a result of the agreement, and also that they will apply to the courts for a parental order in respect of that child.

Amendment No. 12 seeks to ban single men from accessing surrogacy. This would be unacceptably discriminatory. It is important to note that a single male applicant would have to be genetically related to the child and have to satisfy the regulatory authority that they met all the criteria before their application were approved.

Amendment No. 13 makes an interesting proposal in respect of life assurance. We have looked at issues relating to life assurance and health insurance in the context of surrogacy. However, it was deemed to be too prescriptive to include such a requirement in primary legislation. Obviously, it is open to intending parents and the surrogate mother to agree between themselves to make arrangements in these kinds of areas.

As regards guardianship of children born through surrogacy, section 7 of the Guardianship of Infants Act 1964 provides that a parent may appoint a guardian to be a guardian of the child in the event of that parent’s death. Such a guardian is a guardian appointed by a person in his or her will. In circumstances where a child has no guardian, it is possible for the District Court under section 8 of the 1964 Act to appoint one. While it would be preferable for any parent of a child to appoint a guardian, the existing legislation does not require parents to do so. I do not propose to impose a requirement on parents of children born through surrogacy in relation to guardianship that is not required of people who become parents in other ways.

Amendment No. 14 proposes that only countries listed by the OECD and the DAC can be considered for classification as approved surrogacy jurisdictions. However, as the relevant section, section 52, relates solely to domestic surrogacy, it would not make sense to insert this amendment where it is proposed.

On the final amendment in the group, amendment No. 15, I believe that the offences provision in the Bill in relation to surrogacy and the requirement for intending parents to get preconception approval from the regulatory authority adequately deal with the concerns raised here. In particular, it is envisaged that any issues relating to previous offences against children or women would be discovered through the safety of the child assessment. As such, I am not in a position to accept the amendments.