Rónán Mullen (Independent) | Oireachtas source

As I was listening to Senator Seery Kearney, I wondered whether Tusla has an unblemished record when it comes to the vindication of children’s welfare and safety. That is a helpful question to ask, because in the view of many people, it does not. There are failures, and when we ask ourselves why there are failures, whether it is down to bad actors, the incompetence of the system or human resource problems, the answer is that it might be down to human resource problems, challenges within bureaucracy or whatever but it is not our purpose here today to examine whether there are bad actors within Tusla. I do not have any evidence to tell me there are, but nobody would be in any doubt that there are failures in the way we protect children in this country, such as in the case of children who go missing in the care of the State or children, as Senator Keogan reminds me, fostered out by Tusla who have been abused by those to whom they were fostered out, and so on.

That is the reason, to anyone who wonders why we raise these concerns, that we are seeking to tease out and explore how strong these protections are. That needs to be said. There was no excuse not to accept the amendment that would have disbarred anybody with a conviction in the area of child sexual abuse. For the avoidance of doubt, it could have been made clear, without prejudice to any other powers to look into any other issues that are being entrusted to the regulatory body here. There is no good faith reason not to accept that amendment that was posed, from which we have moved on.

My friend and colleague Senator Seery Kearney wants the exact same attitude to be taken to intending parents of children to be brought into the world through surrogacy as would be taken where children are brought into the world when adults do what comes naturally. The reason for her philosophical-ideological view of that is grounded, as is that of the Government, in the idea that since a genetic link is required of at least one intending parent in the context of a surrogacy agreement, there is no right to inquire further into the extent to which regulations are involved. This was very clear when Senator Seery Kearney talked about intending parents having to meet a bar. If we were talking about adoption law and rules for adoption, we would not object to asking people to meet a bar.

That is why we have to ask a follow-up question. All citizens, legislators, Ministers and civil servants have to ask it, of themselves if not to address it in public. When and to what extent is it reasonable and necessary to insist on due diligence when it comes to bringing children into the world? We are talking about using the resources and law of the State to enable people to do something they are not able to do on their own, in the way that happens when men and women have children in the natural way. This legislation brings the State in aid of people who want to bring about a certain result, and the question is what the State can ask for in exchange in the form of the precautions and safeguards it requires. I ask Senators to think about the well-heeled 21-year-old male who wants to bring a child into the world using a surrogate mother from a financially disadvantaged background in Ireland or elsewhere. Are we really saying that because that male will have a genetic link to the child he wants to bring into the world, it is rather cheeky of us to be too intrusive about the standards we want to apply or the precautions we want to put in place? There ought to be, for the avoidance of doubt, a clear provision that nobody with a history of sexual abuse can even get to the door with an application.

In addition to that, and this is the reason for my putting the questions on the section to the Minister, I think he said that where the regulator has the right and, indeed, the duty to request the completion and submission of the specified form, it is not a legal barrier to the further consideration of that request if the intending parents do not comply. No matter how much we are told about how diligent the regulator will be, I do not see that there will be an obligation on the regulator in law not to proceed if it does not get a reply to the request it makes, and I would be grateful for the Minister's clarification on that. I hear him saying the regulator will be diligent, but what if it is not? What if there is a vested interest somewhere or some kind of corruption of the process? Will the regulator break the law if it proceeds with the permission of surrogacy notwithstanding that it has not received a response to the request? I would be grateful for an answer on that, the first question I ask of the Minister in good faith.

Second, I note what he said about how, where the Minister of the day makes regulations, he or she will have to have regard to the paramountcy of the safety of the child in any regulations being made, but that does not dispose of all the issues. I am raising the question of cases where the regulator does not do its job.

He also mentioned the requirements for counselling. Is that set out in law in this Bill? I am not saying it is not but I was wading through my papers and I would again be grateful if the Minister could draw my attention to the precise section.

Does he take the point, or am I wrong, that under the Bill, the regulator could legally proceed with the approval of a surrogacy agreement even if it had been refused a reply to the section 54 request in writing?