Seanad debates
Wednesday, 4 March 2009
1:00 pm
Rónán Mullen (Independent)
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Before the break I made the point on these amendments that we should not look at people's views on this matter on the basis that they are likely to be sectarian or religious if they come from a traditionalist position. People of different religious views will be on both sides of this argument and there are people who would be concerned about allowing same-sex adoption for reasons that have nothing to do with religion. They might be of any religious faith or none. I said it is important to examine this issue on the basis of reasoned argument, taking as our starting principle that we seek the common good, to vindicate the dignity of the person in all situations and to address the needs of the child as a paramount consideration.
In considering whether it would be appropriate to allow for or to facilitate adoption by same-sex couples, I said it was appropriate we examine our Constitution, which is a natural law document. Saying the Constitution is a natural law document can be mistaken for meaning it is a Christian or Roman Catholic document. The concept of natural law has to do with the idea that each human being has certain inherent rights which cannot be given or taken away, even by a majority vote. I pointed out that there are thinkers, such as Professor John Finnis of Oxford, who are eminent in natural law but who do not come from a particular religious perspective as they reason their case.
I made the point that people of religious faith are entitled to speak from their lived experience as they assess issues and that people come from all sorts of perspectives. People base their political views on issues such as personal convenience, bias, personal upbringing and preferences. All sorts of reasons motivate people and in a sense it is wrong to look behind people's reasons for having particular views. Instead, we should test the quality of people's arguments using the reason we have all been given.
In approaching the question of same-sex adoption, I look at the Constitution's pledge to guard with special care the institution of marriage on which the family is founded. Contrary to what Senator Bacik appeared to indicate, that has always been understood to be the two-parent, man and woman, father and mother family. One of the questions we must address is whether we would like that to continue to be the case or to see the wording of that revisited in a dramatic and, perhaps, surprising way to include other family forms.
Nobody denies that children are brought up in diverse family situations and that there is nobility and heroism to be found in many situations where children are reared. However, that is not the question. The issue of interest to the State is how to promote the best interests of children by supporting the model which works best for most people most of the time. We all know there are dysfunctional traditional families and that terrible things happen within what has been called the traditional family. We know people will be brought up outside the traditional family, perhaps by same-sex or single parents, and that in many cases their upbringing will be heroic and will involve great love and huge self-sacrifice. Does that mean the State should be neutral on the question of family form? Far from it.
The State must vindicate the rights of the child in every situation while promoting the model it sees as being of timeless value in guaranteeing the best interests of children. This will always be imperfect because the law cannot bring about a perfect world; nothing can. However, the law can seek to promote and champion what works best, not to treat as equal value forms which do not work so well. It is meaningless to acknowledge on the one hand that the welfare of the child should be paramount while on the other hand rely on statistics which, on closer analysis, are not so reliable in seeking to claim that it does not matter whether a child has a father and mother as long as the quality of the relationship is good. Of course the quality of the parental relationship is the key issue but that ignores, rather than answers, the question, which is in what circumstances is the quality of the relationship most likely to be good.
The Constitution underpins my argument and it was drafted in this spirit. Common sense would acknowledge that allowing for same-sex adoption would deny children the acknowledgement of their right to a mother and a father, where possible. It clearly places the wish of adults above the rights of the child in a way that is not compatible with the stated aspiration that the welfare of the child is paramount. My distinguished colleagues quoted polls suggesting there is majority support for same-sex marriage. There may well be now without a thorough debate on it, but it is always dangerous to rely exclusively on statistics or surveys as we seek to determine what is proper and just. This is particularly true in a context where it is very difficult to have an honest, searching, meaningful debate on where the rights of same-sex couples end and how they might impact on the rights of children were we to support or sponsor same-sex adoption. It is very difficult to have that debate. People take it very personally, and I understand that, but we must have that debate and it must begin from first principles about what children need and what we owe children.
Allowing same-sex adoption would deny children acknowledgement of their right to a father and a mother where possible. The Iona Institute poll, which is not done by the Iona Institute but by a reputable polling firm, which would require that certain standards be met — that does not need to be said but it is no harm to add it — found that over 90% of the public support a child's right to a mother and a father where possible. The burden of proof in the child welfare debate clearly lies on those who argue that marriage between a man and a woman is not the optimum environment within which to raise children. Those who argue that it does not matter whether there is a male and a female parent really do have the burden of proof on them in this debate because they are the ones advocating radical social change.
It was my colleague, Senator Bacik, who suggested — I hope I do not misquote her — that all of the evidence pointed to the realisation that it does not really matter whether there is a father and a mother and what matters is quality of relationship. She cited, in particular, the research of Professor Susan Golombok. I quote, on Professor Golombok's study, what was stated in the High Court in the Gilligan and Zappone case where a couple are seeking to have their Canadian marriage recognised as a valid marriage in Ireland. It appears that in the Golombok studies only 38 children were used and this is a tiny sample. This is a problem with all studies on same sex parenting. There is little by way of reliable, longitudinal studies and people will differ as to what such studies mean. Often the studies are based on how people think they themselves are doing as distinct from being based on an objective analysis.
Miss Justice Dunne, the judge in the Gilligan and Zappone case, stated: "until such time as there are more longitudinal studies involving much larger samples that it will be difficult to reach firm conclusions on this topic". Today the studies are flawed in many ways and this was pointed out by Professor Linda Waite, not the academic to which my colleague Senator Norris referred who, I think, was an Irish academic, but Professor Linda Waite who is a sociologist in the University of Chicago and who describes herself as a neutral on gay marriage. She is a leading expert on the family, however, and she gave evidence in the Zappone-Gilligan case. She admitted that she had not read the Avon study but she made this comment on the very small size of the group of lesbian headed families from which Professor Golombok extracted her study. She stated that it is wonderful to have 39 randomly selected lesbian families but it is too few to say anything about and that to give an example of a recent study done by a colleague of sexuality, the National Social Life Study, any group that had fewer than 50 representatives was never mentioned and 39 is a very small number of lesbian families.
This is just to deal with the academic work cited by my colleague Senator Bacik. This is a problem that arises where the studies are not longitudinal, they are based on small samples and often rely on people's perceptions of how they themselves are doing. This is important.
I find it quite credible that some studies of lesbian families, for example, of same sex lesbian couple headed families, would show that there is lots of nurturing and lots of good stuff going on. I have no difficulty with that at all. My point would be, first, that those advocating that a small number of studies allow us to make this radical social change are asking us to take on a great deal. Second, those studies may well prove to be unsatisfactory. Third, there are other studies which suggest otherwise. Fourth, when one looks at lesbian couples then one must ask what are the implications of that for same sex male couples and whether they perform to the same standard in the perception of the limited studies that have taken place.
Can we really afford to drive all of this debate on the basis of statistics in surveys? When we come back to the core point and regardless of whether one can find a statistic to show it in the short term, it is the experience of the centuries and the intuition of most reasonable people that fathers and mothers do make a difference, that there is a difference between a father and a mother and that gender is not just a social construct. That is the majority reasonable opinion in our society.
That is not to say that one will not find situations where through force of circumstances, for example, a heterosexual couple splits up and a natural parent finds himself or herself in a same sex relationship. One can always point to those exceptional situations. One can point to cases where a person dies in a car accident and a widow or a widower is left to bring up a family. Nobody wants to make any adverse comments about those people, but are we going to pretend that it does not really matter that such has happened or that it does not really matter that the child no longer has the society of a father or a mother with all the complementarity that the presence of both biological parents brings to the situation?
As we talk about studies, there was a meta-analysis, that is, a higher level analysis of existing studies, of all available meaningful data concerning the impact of marriage and other forms of relationship on child welfare. By the way, I am not interested in quoting partisan studies. I am happy to show any studies I quote to my colleagues, whether they agree or disagree with me. Everything must be tested in the rigorous light of day here. The study to which I refer was in Child Trends. It was done in June 2002. It was a bipartisan American meta-study of various family and marriage studies called Marriage From a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It?" Here is the money quote, as they say:
[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single parent families, children born to unmarried mothers and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents. Parental divorce is also linked to a range of poorer academic and behavioural outcomes among children. There is thus value for children in promoting strong, stable marriages between biological parents.
Once again, this is not to deny the heroism and the value of exceptional cases. This is not to deny — the Minister, Deputy Harney, stated that the worst day in Government was better than the best day in Opposition — that the best day in a non-traditional family is far better than the worst day in a traditional family, and nobody denies that at all. However, what we must do if we care about the common good and if we care about the welfare of children is promote what works best, not with the needs and aspirations of adults in mind in the adoption context but with the needs and just desserts of children in mind.
That quote is backed up by other studies and reports. It is not today's topic but it was raised by my colleague, Senator Bacik, in the context of cohabitation that there is an anomalous situation where the Bill does not refer to the possibility of adoption by cohabiting couples. People's increasing tendency to cohabit before marriage is leading to an increase of births outside marriage and this is bad for children according to research. Some 44% of British babies are now born to unmarried parents according to a new report compiled by researchers at the University of Essex. Researchers estimate that cohabitees are likely to make up three quarters of those parents. John Ermisch, professor of economics at the University of Essex, stated that the rise in births outside marriage is a real cause for concern. The instability of these unions means that more British children will spend significant parts of their childhood in families with only one parent and this appears to have long-term negative consequences.
Professor Ermisch stated that many of these cohabiting relationships are doomed to failure, leaving the baby in a single-parent family, and that the time couples spend living together in cohabiting unions before either marrying each other or separating is usually very short, the median duration being about two years. He stated that the unions that produce children are much less likely to be converted into marriage and more likely to break up than childless ones. He stated that only 35% of cohabiting couples stay together until their children turn 16, compared with 70% of married couples. So much for the statistics.
The reason I mention all this is to make quite clear that it does matter what our adoption legislation envisages in terms of who may apply to adopt and that again is without denying the fact that in certain circumstances, indisputably one will find children in situations that do not conform to the socially preferred model. That is not to say we cannot confer generous rights on those children who must all be cherished equally, but it should not be glibly extracted from it that we must cherish equally all the relationships that give rise to those situations. I think this is what the Constitution speaks of when it acknowledges equality but also says the State shall have regard to differences in capacity and function. One can fully acknowledge the incontestable dignity of each human person, whether he or she is gay or straight, married or unmarried, while at the same time saying that if one wants children to have the best possible upbringing, the State must work hard to protect the traditional, time-honoured and socially successful model. That is what this is about. On that basis, if the welfare of the child is paramount, we will start much earlier in this debate asking what works best for the children and how we promote it.
I take issue, therefore, with Senator Bacik's approach which is that we will have civil partnership anyway so there is nothing too bad about pre-empting it by envisaging that same sex couples might adopt. I have concerns about the civil partnership legislation and the inherent unfairness in it, although now is not the time to rehearse that. The State, however, does not propose to envisage adoption in the civil partnership legislation and therefore it would not only pre-empt the legislation but dictate its content and go further than the Government proposes by envisaging same-sex adoption and do so in a manner that would blithely disregard what the Constitution requires with regard to Senator Norris's earlier point.
Following the logic of Senator Norris's position, that it is insulting to the Canadians to deny that a marriage valid in Canada is not valid before the Irish courts, where would we stop? If we follow that logic, we make our constitutional values subject to the whim of every nation on earth. I read recently that there is a body of respectable opinion in Canada that proposes the legalisation of polygamy. The argument, although I do not know if the Canadian Government accepts it, is that if same-sex relationships are to be equated with marriage on the basis that the two people love each other, why not equate polygamy with marriage? There may be more than two people but they are of different genders so it is more like traditional marriage in that respect. This is where we go when we abandon first principles and make hollow claims on the basis of what we claim equality means and depart from objective scrutiny of the good of the human person and the common good.
I am not afraid to hear the best arguments in favour of same-sex marriage, relationships or adoption. I prefer to regard relationships as a private matter where no one would be scorned but neither should the State pretend that there are relationships equivalent to traditional marriage given the importance of the complementarity of the sexes. I am willing to have a respectful debate in which all the issues are teased out without fear or favour or insult or rancour.
I do not expect the Government to accept these amendments. With due respect to the sincerity of their proponents, I believe these amendments are destructive in what they envisage in terms of social policy. That is to be regretted. I reiterate that the civil partnership legislation does not envisage provision for same-sex adoption but that is not enough. The Government owes it to us to vocalise and express its clear support for a model of adoption and family life that acknowledges the primacy and preferred status of the two-parent, father and mother model for the upbringing of children, not because we want to reject anyone's sincere or legitimate aspirations but because we want to promote objectively what is in the best interests of children and society.
Fidelma Healy Eames (Fine Gael)
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This is a sensitive and important issue. It is not helpful to talk about people's sincere views as destructive. It is not good to be holier than thou because ultimately we are deciding who has the right to be a parent and the construct in which they have that right.
I do not want this debate to be polarised into who is right and who is wrong, it is too important for that. I was disappointed to hear Senator Mullen quote research stating that two biological parents make up the best construct to give value for the child. Where does this leave adoptive parents? The amount of evidence that shows adoptive parents are providing wonderful homes for Irish children and that Ireland is exceptional in its provision of good homes, completely contradicts this research. I accept that the most important thing is for the child to be reared in a loving family. It is the quality of the relationship the child experiences as he or she grows that helps him or her become a full person in adulthood.
There is an anomaly in that a single person who is lesbian or gay can adopt in his or her own right but cannot do so jointly. That must be worked out. There is a wise phrase that one good single parent is better than two bad married parents and we must listen to the concerns on both sides of the argument. I respect those concerns of people in gay relationships who wish to be parents to adoptive children. I equally respect and uphold the rights of married couples to be adoptive parents.
Having said that, we should back up a little. We must now address this and the best way to do so is through the civil partnership Bill. We must get first principles correct, this is too important an issue to kick to touch quickly. Irish people need more time on the issue and, having noted the damage that can be done by saying biological parents are better than other parents, or that the views in some of the amendments are destructive, people do need more time and I am willing to give them that.
Frances Fitzgerald (Fine Gael)
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We have seen dramatic changes in Irish society over the years. Until 1972 women had to leave the public service if they got married. I agree with Senator Norris's remarks on former Deputy Máire Geoghegan-Quinn coming into the Houses and decriminalising homosexuality, an act that displayed great political courage. It was an extraordinarily brave action in the political context of the time.
It is one thing to discuss theory but real lives are different and what we say and do has a real impact on them. We talk about the ideal forms of family for children but the reality of what works for children is different. The quality of parenting is key, and no one can quote any study that proves one way or another which family form is best for children. Whether with male or female, married couples or same-sex couples, the key to the child's future is the quality of the relationship and the care the child receives. I acknowledge that we still live in a deeply homophobic society despite the changes we have seen. We must be aware of that fact and be sensitive to it. Children are being brought up in same-sex families for whom words spoken casually here could be extraordinarily painful and difficult. There are heartfelt views on this matter. We have seen the debate in the United States, which is at a different stage from what is occurring here. It does not matter whether one is left wing or right wing, conservative or liberal, people have deeply held views on this issue. It is not easy because it brings out all the different views and values people have.
We live in a society where people die because of homophobic attitudes. As a recent report showed, young men and women experience extraordinary levels of discrimination in school if they are gay. Anecdotally we know that suicide rates are greatly impacted upon by the horrific pressures experienced by homosexuals, which can lead to a lifetime of depression, upset and difficulty. While we have seen great progress, society still has much work to do in this area generally.
My legal advice is that without the legal structure of civil partnership in place and the issues of permanence that would be so addressed, these amendments are premature. I fully accept that they are not premature for those who want to see this legislation in place, such as gay couples with children who want recognition and legal status. I accept that people in such circumstances are experiencing difficulties. When will the civil partnership legislation come before the House? Is it intended to address in that legislation some of the anomalies that were outlined by Senator Bacik? She said this type of amendment was dealt with in England under adoption legislation, but civil partnership legislation may already have been in place there, although I am not absolutely sure. I ask the Minister of State to comment on those matters.
Alex White (Labour)
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I suspect that Senator Fitzgerald is probably right in respect of the amendments, both of which I support strongly in what they seek to achieve.
Pat Moylan (Fianna Fail)
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Mobile and BlackBerry phones are not allowed in the Chamber. They must be left outside or turned off completely.
Alex White (Labour)
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I entirely agree with you, a Chathaoirligh, but the finger inevitably points at the person whose microphone is on. I am just pointing out my innocence on this occasion. It was not my phone.
I strongly support what Senators Bacik and Norris are proposing in these amendments. However, Senator Fitzgerald may be right in terms of the sequence of events, given that we are to have civil partnership legislation. I have not had an opportunity to discuss this with Senator Bacik or Senator Norris but, curiously enough, Senator Norris's proposal may not have the same exposure to the problem of being premature as, with respect, has Senator Bacik's.
While I am not seeking to differ in any sense with what she is seeking to achieve, on the contrary, Senator Bacik's amendment No. 3 contemplates "a registered civil partnership". There is no provision in Irish law for a registered civil partnership, although I am not saying that that alone defeats her amendment. However, it may be that what Senator Fitzgerald said is more correct as regards that amendment than it is concerning Senator Norris's amendment No. 20, which may not fall foul of that particular objection. It refers to "a couple of the same sex over 21 years of age who can demonstrate that they have been living together within the jurisdiction for not less than two years".
Without getting too bogged down in the legislation, I wish to make a few more points. We are inclined to debate the debate a lot here, rather than getting down to the issues of substance that are contained in the Bill. I take in good faith what Senator Mullen says about the need for respect for one's point of view. He made that point before and I agreed with it then too. As a general point, however, I find it hard to take if somebody says in a debate like this that it is important that the values of respect for one's point of view are at the heart of what we say, but then goes on to say that the effect of the two amendments would be destructive. Senator Mullen said that clearly and did not seek to moderate the point he made in respect of the word "destructive", which he used again at the end of his speech. The word "destructive" derives from the word "destroy" so, essentially the argument is being made that if we are to permit adoption by same-sex couples, as contemplated by these amendments, it would destroy something. Would it destroy marriage or what would it destroy? "Destroy" is a big word.
We are essentially turning these arguments into abstractions because Senator Mullen invites us to look at the Constitution and its natural law base. We then end up in what appears to be an entire abstraction. This comes up in all these debates. It first arose 25 or 26 years ago when we debated the issue of abortion. It also came up concerning the divorce referendum when it was argued trenchantly that if we were to allow divorce, it would destroy marriage. That is what was stated at the time. I am quite sure the words "undermine", "destroy" and "destructive" were used then, or words that meant the same thing. Nevertheless, the availability of divorce in our jurisdiction has not destroyed marriage. It did not destroy the institution of marriage for those who were already married or for people who got married since divorce was introduced in Ireland. Therefore it is not destructive. Without further elaboration, I cannot see why or how it can be seriously argued that changing the law to allow for adoption in the circumstances proposed by Senators Bacik and Norris would destroy anything. That point needs to be elaborated further than just stating that it is in our Constitution.
That begs the question of why it is in the Constitution. While I can understand that historically, if it is in the Constitution and it is not right or we do not agree with it, maybe we should take it out of the Constitution. It is a circular argument to say "You better look at the Constitution because it is in there". As Senator Mullen said, one must address the rational arguments for it, not just the fact that it appears in the Constitution or that the Constitution would appear to mean what is being advocated by Senator Mullen — that marriage is based on a union between a man and a woman. That would appear to be the position under our Constitution, but the argument does not end there. The Constitution is an important solemn document but the argument must be made. I do not agree those advocating adoption by same-sex couples have to carry, as Senator Mullen put it, the burden of proof of demonstrating that it should be allowed. We need to get away from the abstract and examine everyday life as already pointed out by some Members.
Senator Mullen acknowledged there are many good instances in circumstances where children have been adopted by same-sex couples and they are successful and loving families. The burden shifts to the other side of the argument to demonstrate why same-sex adoption cannot be legislated for in the real world. In fact, the burden is carried as much by the other side of the argument.
Where is this right that claims a child must be adopted into a marriage based on union between a man and a woman? What is it derived from? Has the child the right to a father and a mother? I would like to hear more arguments about this. I believe, as Senator Healy Eames and others have said, a child has the right to a loving and nurturing upbringing. Is there a right that the couple should be of the opposite sex? How could we vindicate the right that there should be two parents, because many children are brought up by one? There are too many abstractions in this debate. Our role is to be practical legislators. Of course, we have to have regard to all the arguments, statistics and otherwise. We must look at each other's arguments across the Chamber. We need to carefully consider the arguments of those who disagree with us. It is not enough for us to say, "It is in the Constitution and that is the way things should be".
I would need to be convinced that the common good would be affected by this proposal for same-sex couples. As the Minister of State said earlier, the welfare of the child has to be at heart of all of this debate. I am not convinced the welfare of the child in all circumstances can only be vindicated by the status quo. In fact, I need to be convinced by those on the other side of the argument rather than me having to convince them.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I thank Senators for their extensive contributions on these two amendments.
Gay men and lesbians make very good parents. It must be made clear they always have and always will. We must also acknowledge that many same-sex couples foster children. They are entrusted to them by the State through the Health Service Executive proving the State does not have any set view on this matter. The argument that same-sex couples cannot be good parents is contrary to the case.
I agree with Senator Healy Eames that adoptive parents must go through a more rigorous process of selection to become parents. There is nothing to stop natural parents becoming parents whereas adoptive parents must go through an extraordinary and difficult ordeal. Biological parents, therefore, do not have an advantage over adoptive parents in parenting.
The constitutional position is the background to this debate. In my view, marriage is preferable to cohabiting for adoption purposes because of the obvious permanence. This is without any reference to sexual orientation. A married couple provide that level of permanence in the assessment of suitability and eligibility for adoption that is carried out by the Health Service Executive. While a couple is preferable, single people are allowed to adopt.
While marriage continues to be defined as it is in our Constitution, adoption will not be available in those circumstances. If there were an amendment to this constitutional provision, this debate would be moot. As Senator Alex White said, the civil partnership Bill will be introduced soon. According to the programme for Government, it was intended to be introduced at the earliest possible date but in the past three months the legislative programme has been more than somewhat put to one side because of the extraordinary economic circumstances. The Gilligan-Zappone case will also give a much clearer judicial interpretation on where the family stands constitutionally.
Regarding Senator Mary White's comments, from my work with young people as the Minister of State with responsibility for children, I have noted young people find it difficult to come to terms with their sexual orientation and, in many cases, they self-harm. This is a challenge for teachers and youth workers to recognise and acknowledge.
We do not want the message to go out from the House that with the route we are taking on adoption there is an adverse comment on sexual orientation. Through the fostering process, it is recognised that we have no problem with gay men and lesbians being parents or minding children.
The UK situation was referred to by some Senators. The UK, however, does not have a constitution and, therefore, is more free to legislate in these areas.
Senator Mullen relied on several surveys for his argument while warning about relying on other surveys. The facts are clear — we have an adoption system and there are clear categories of who can adopt. The adoption legislation incorporates that within the constitutional framework and that is the basis for the Government's consideration of this. It is child-centred legislation.
An interesting point was raised about adopting a natural child of a gay partner. I have not scoped this out clearly and we need far more consultation on it. Would it include an adopted child of a gay partner or just the natural child? I agree with Senator Alex White that the amendment in the name of Senator Bacik anticipates legislation that has not yet come before either House. As such, it would be extremely difficult to incorporate the provision in the amendment in law without even mentioning the points I made previously.
The other amendment deals with the question of cohabiting couples. I may have read it wrong but the import of this amendment appears to be that there should be discrimination in favour of same sex cohabiting couples, while opposite sex cohabiting couples would not be able to adopt.
David Norris (Independent)
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I listened with great interest to what my colleagues said and I was particularly heartened by the Minister of State's comments. I do not anticipate that we will succeed in respect of this matter. I cannot speak for Senator Bacik but I will not push my amendment to anything other than a voice vote. However, we will seize the opportunity to take on board some of what has been said. The Senator and I have agreed to work together to produce a composite amendment to be moved on Report Stage. This amendment will contemplate some of the matters that have been raised.
To a certain extent I am pulling my punches when I state that no amount of high-octane smarm will conceal attitudes. It is one thing to make a ritual gesture in the direction of dispassionate, intellectual inquiry, debate and so forth, but that is just not the case. If I am tempted further, I will place certain matters on the record of the House. At this point, however, I will not do so.
I would certainly take some of these things personally. I have no desire to become a parent but I recognise the extraordinary nature of the discrimination that has existed during my lifetime. I come from a fairly respectable background. However, I have known eight people who were murdered simply because they were gay. The source of this is the Christian church — one church in particular — and the kind of pastorals that usually emerge during Lent. I must state that I am not taking any more of it.
The comments relating to young males who are gay committing suicide are, of course, true. However, what the hell else do people expect when the various churches continue to be exempted from the operations of the equality legislation? There have been numerous reports in respect of this matter. One recent report indicated that 80% of bullying cases in schools involve a homophobic element and that in 80% of such cases nothing is done. The main reason is that people who are paid by taxpayers are afraid to take action. The person who has the final say, namely, the manager of a school, is almost invariably a member of the church. That is not tolerable. The Minister of State is a very decent man and I ask him to bring this matter to the attention of his colleagues.
The notion of the right of a child to have a father and a mother is absurd. Who can deny that right? It is an observable fact. A child's parents may not be present but I cannot understand how he or she could come into existence in the absence of an admixture of male and female. He or she may be conceived in a test tube or in some other way but he or she will certainly have a father and a mother. Let us put this notion to one side.
What we are dealing with is the nurture of children. Let us forget the various points regarding the possible longitudinal defects of certain studies which have been impugned by people who apparently did not even read them. I thought that was an engaging admission, as was the admission made by the other person quoted by Senator Mullen who stated that she has no expertise whatever in the matter, that she has never written any academic papers on it and that she does not possess any qualifications in this area. That is splendid. These are the types of people to whom we should listen. How impressive.
I react very badly to the notion that in the single instance of gay people we are going to reverse the procedure that usually applies to every citizen and state that they are guilty until proven innocent. No thank you. Let us see the studies which indicate that children adopted by gay people can be damaged. There are no such studies. It is one thing, as happened on previous occasions, to impugn the background and reputation of people engaged in the production of results on one side but it is quite another to signally fail to produce any evidence that damage can be caused to children adopted by gay people.
I wish to return to the issue of the rights of children. As stated, we already possess the evidence provided by children adopted by gay people. Why are theirs the only voices to which those who strongly oppose what I am suggesting absolutely and adamantly refuse to listen? Yesterday, as part of my day's business, I met two people who want to start a radio station in Dublin which will cater to the gay community. After approximately 45 minutes, I asked the individuals with whom I was meeting whether either of them is gay. They both replied in the negative but indicated that there is a need for such a radio station to fill a gap in the spectrum. That is both interesting and heartening because it suggests that this matter has really entered the mainstream. One of the people in question said that I might recall a letter he sent me in which he indicated that both of his parents are gay. He is of the view that he has been enriched by his experience.
In all the newspaper articles and television and radio reports relating to this matter, I have never heard a child of gay parents state that he or she was damaged by his or her upbringing. What damaged people was the disgusting, immoral and hypocritical way in which individuals were forced into marriages to which, in light of their deepest instincts, they were not suited. Children were born in such marriages, which eventually collapsed and broke down. Let us be honest and not engage in a theoretical approach to this matter. Let us consider the rights of children and what they have to say in respect of it.
I feel strongly about this issue and I am not prepared to be a second-class citizen. When I hear people use phrases such as "well they are not equal" and "forms which do not work so good", it is not the grammar that particularly offends me — the word "well" as opposed to the word "good" should have been used — rather it is the idea that I will continue to be defined in a certain way. If one examines the language used by my colleague, one will find that regardless of whether he states that he is representing the Roman Catholic view — he indicated that this is not necessarily the case — all the language used, such as "complementarity" etc. follows, very directly, the line taken by the Vatican. That line is deeply destructive in respect of gay people and I strongly resent and repudiate it.
4:00 pm
Ivana Bacik (Independent)
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I thank the Minister of State for his considered comments on this matter. Like Senator Norris, I do not propose to divide the House in respect of my amendment. Rather, I wish to reserve my right to do so on Report Stage on the basis that the Senator and I have agreed to draft a composite amendment that will seek to address the clear discrimination that exists against same sex couples and to permit adoption rights. In so doing, we will certainly take on board the constructive comments that have been made by others, particularly the Minister of State.
In essence, we are discussing two different issues. I thank the Minister of State for saying that he is willing to consider the first of these. This issue, which I first raised, relates to a child — there are many such children living in Ireland today — who is born to a mother who is in a same sex relationship. That woman's partner has no legal relationship with the children or, to put it more pertinently, the child has no legal relationship with his or her non-birth mother. That is unfair to the child, who lives in a secure and loving home with two parents, and creates a form of second class citizenship for such a child.
I completely agree with Senator Norris regarding the nonsensical nature of speaking about a child's right to a father and mother. Such a right is not enforceable where the father is deceased or where, for example, a child is conceived through rape. A large number of the children to whom I refer were born into secure and loving homes and have two parents. Let us provide a means whereby the child can have a legal relationship with the non-birth parent in that situation. How can that be done? We propose to do it through adoption legislation, by permitting the non-birth parent to adopt the child. However, there is another way and I am anxious to hear the Minister of State's view on it. The way cohabiting parents deal with the rights of the birth father and the right of the child to a relationship with the birth father is through the simple mechanism of the statutory declaration. This is a standard form declaration which is sworn by the father in the presence of the mother and a solicitor, following which the father gets full legal guardianship rights along with the mother who has them by virtue of the birth. The plight of children born to same sex couples, where one is a birth mother and one is not, might be addressed through the guardianship mechanism. Is the Minister of State willing to consider that? In other words, it would treat a cohabiting non-birth mother in the same way as a cohabiting birth father. This issue could be addressed through adoption but I can see that is, perhaps, a simpler mechanism to deal with it. It could be done in the context of giving civil partnership rights.
The second issue is that of gay couples who wish to be considered generally for adoption on the same basis as opposite sex married couples are at present. There is clear discrimination here. I will go through the arguments. The Minister of State said that Senator Norris's amendment would effectively bring about discrimination between heterosexual cohabitees and homosexual cohabitees. He is correct; it would. At present, cohabiting opposite sex couples have no right to be considered for adoption as a couple. However, Senator Norris's amendment is justified in a situation where same sex couples cannot enter a legally binding relationship recognised by the State. I say that without prejudice to the Zappone and Gilligan case which is about the right to marry for same sex couples. I believe that right exists. At present, the mechanism in adoption law appears to preclude gay couples, especially non-married gay couples. That is a difficulty. I believe the Minister of State's criticism is unfounded.
The Minister of State rejected my amendment with the criticism that it is premature. I refute that outright; I do not accept it is a premature amendment. There is a clear commitment by the Government to bring forward civil partnership legislation. We have the heads of the Bill. It is common drafting practice to draft legislation but to delay its commencement when it is contingent upon something. I can offer a clear example, of which the Minister of State will be well aware. The Children Act 2001 provided for children detention centres and a new regime for the detention and treatment of children in the criminal justice system. Large portions of that Act were not commenced for several years after the Act was passed. It is not premature, therefore, to provide in this legislation for something that will become law. One could simply delay the commencement of the particular section until the other legislation is in force.
The Minister of State said a decision has been taken to confine adoption eligibility to married couples rather than extend it to cohabitees. It is a pity an extension of the categories of eligibility was not carried out in this Bill. As I and Senator Fitzgerald have pointed out, it is anomalous that one can adopt as a single person or as part of a married couple but not otherwise. However, one can see how, in the interests of children, an adoption authority would wish to be convinced where a couple are adopting that there is evidence of commitment. The fact that the couple entered some form of binding legal relationship might provide that sort of evidence. It is in the spirit of that conservative approach that I drafted my amendment. It confines eligibility to adopt to married couples but it defines a married couple in a somewhat different way from the definition used by the Minister of State. It is, therefore, in line with the Minister of State's policy arguments that eligibility should be confined to particular groups.
I hope the Minister of State will take those comments on board. Perhaps he would also answer a direct question. What does he propose to do for those children who are currently alive and well and growing up in a secure, loving home but have no legal relationship with their non-birth parent? We have seen the very distressing case of a grandmother whose grandchild's birth mother was killed in an accident. It meant there was no legal recognition of the place of the child's non-birth mother in the child's life. It was most unfortunate. Had there been a breakdown in relations, for example, the grandparents through the non-birth parent would have had no rights and the child would have had no rights of access to them. That is the type of difficulty we must address. Will the Minister of State consider addressing it, if not through this route through some other route such as guardianship?
I asked the Minister of State a direct question about the civil partnership legislation. Will he consider providing for adoption or guardianship rights for same sex couples in the civil partnership legislation instead? Even an indication that it might be considered would answer many of the points Senator Norris and I have made. These are not issues that necessarily must be dealt with in the Adoption Bill but, given that they were dealt with in the Adoption and Children Act 2002 in the UK before civil partnership, it appears to be a logical approach. It is anomalous that discrimination is continued in what is otherwise an excellent and reforming Bill that seeks to modernise our system of adoption. I genuinely welcome the Bill but it is unfortunate we did not take the modernisation a small step further.
Rónán Mullen (Independent)
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I thank my colleagues for their courtesy in their responses. I recognise that the position I advocate in the current climate is not the position that enjoys majority support in the media. It tends to be the view that is considered not to be politically correct. In a society where people who have a traditionalist world view presume to speak there can sometimes be a tendency to be intolerant of their views, an intolerance that perhaps replaces the intolerance and lack of charity and respect that was previously shown to homosexual persons in a way that I deplore.
However, I wish to take issue with my colleagues, Senator White and Senator Fidelma Healy Eames, who seem to have a problem with my view that the consequences of what Senators Bacik and Norris are proposing would be destructive. Senator White sought to parse the word "destructive" in a rather tortured way. This is a word we use every day of the week as we try to speculate on the possible effects of policies that are proposed. We say a policy could be destructive of something. Destructive means damaging and negative. It in no sense suggests that the people themselves are wilfully destructive people or anything like that. I detect a sensitivity on that point that turns into a certain censoriousness. It is almost as though there is a fear I might point to negative effects and that I dare not say that what is proposed would be harmful or cause problems. That is almost an attempt to censor me. I use that word in the most respectful manner but I used a word that is in the everyday language of discourse.
Senator Healy Eames is from the same secondary school as me. I was disappointed that she used the most personalised language of the afternoon in telling me that I was holier than thou. That is clearly to identify that I have a particular moral position or attitude. I do not regard myself as holier than Senator Healy Eames; I do not know how holy she is to begin with. I certainly do not regard myself as particularly holy. I regard myself as having a sincere point of view that is based on rational argument about something I believe is important for our society and touches on the welfare of children. I am sure Senator Healy Eames and I agree on many issues relating to the welfare of children and I would like to think that as she reflects on the phrase "holier than thou", she might regret it just a little. I do not intend to be holier than anybody, I merely intend to contribute my——
Paddy Burke (Fine Gael)
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The Senator is straying from the amendment.
Fidelma Healy Eames (Fine Gael)
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This was not personal; it was the argument that was holier than thou.
Rónán Mullen (Independent)
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Senator Healy Eames and I will have a glass of milk about it in the Dáil bar later and make up in due course.
Ivana Bacik (Independent)
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A saucer of milk is more like it for some people.
Rónán Mullen (Independent)
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Senator Fitzgerald said she did not believe we would quote any study that shows what works best for children. There might have been an unconscious glibness about what I had to say about surveys and statistics. While surveys clearly help to determine what assessment people have reached on an issue, they do not prove whether they are right or wrong in that assessment of a situation at a given time. Statistics, if they are impartial and carefully compiled, are a tremendous aid but they are not the last word. They are not merely theoretical but explain the practical position on the ground, an issue Senator Fitzgerald and others correctly identified as important.
I was correct to respond to Senator Bacik's statistics by making one or two relevant points about statistics.
Paddy Burke (Fine Gael)
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Please allow the Senator to continue without interruption, please.
Rónán Mullen (Independent)
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The Senator referred to Professor Susan Golombok.
Will we be so mindless as to ignore statistics? Surely we must factor them into the debate and consider the evidence. As to different types of family form and outcomes for children, other countries, including Britain and the United States, tend to be far ahead of us. I am concerned that, as a small community, Irish academia may be disinclined to go against the trend of opinion and treat these issues dispassionately.
To clarify an issue for Senator Alex White, who is no longer present, in saying something could be destructive, I mean it could have damaging effects. I believe this could be the case if the amendments were accepted, although I do not argue that the family would be destroyed in every scenario. Such an interpretation of my words would be radical and illogical. The Senator correctly said that just because something is stated in the Constitution does not mean it ought to be stated in the Constitution. My point on the Constitution is that I believe that what is proposed would be unconstitutional. The logical course, therefore, is to seek to change the Constitution in the first instance rather than introduce an amendment that would, in my view, clearly fall foul of the Constitution — others may differ from me on that issue.
The Minister of State correctly spoke of the love and goodness there can be in other family forms. He also spoke in positive terms about same sex couples fostering children. The logic of his position is that he believes the civil partnerships Bill should envisage adoption for same-sex couples and the Constitution should be changed to accommodate that. If that is his belief, he should say so.
The Minister of State also stated that marriage is about permanence and that having two parents is preferable to having one parent. He is correct to identify these factors as two of the key ingredients marriage offers, both of which make married couples particularly suited for adoption. He omitted to mention the concept of complementarity, a word Senator Norris believes is derived from Catholic church thought. The Senator appears to believe I am much better read in Catholic church teaching than is the case. That men and women are different and bring something different to the party, so to speak, is my own thought. I point out to my colleagues, especially those who appear to believe I have a problem with adoptive parents, that I am not against this Bill and believe that adoption is wonderful, but I recognise that adoption often comes about as a result of unfortunate circumstances.
I have cited reputable surveys which show that two biological parents in a low conflict marriage offer the best chances. Those who deny that are either extremely sensitive or unconcerned about considering what data can show and teach us, and that is wrong. We can applaud adoptive parents, as I do, for all the good they do and the love they bring, particularly in difficult circumstances, without closing our eyes to realities that can be demonstrated through statistical analysis and otherwise.
I do not know whether the word "complementarity" is a word used by the church. Senator Norris insists on seeking to link my views with those of the church of which I am a member. I remind him, however, that he too is a religious man who has a different view. I do not claim that his views are those of the Church of Ireland. The Senator also stated that he would place on record certain matters if provoked. He should do so as a full debate is needed. I do not believe anything he chooses to say will be disadvantageous to me.
I am ultimately the only judge of the origin and source of my opinions. When I say they are rationally held and I hold them independently of my religious views, I am entitled to be taken at my word. To second guess that is to engage in a sinister form of thought control that would seek to characterise sincerely held traditional views as religious.
Ivana Bacik (Independent)
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On a point of order, is this relevant to the amendments we are debating?
Paddy Burke (Fine Gael)
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The Senator is straying from the amendments.
Rónán Mullen (Independent)
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My contribution is relevant to the points made in response to my earlier contribution and I have not strayed from those points. I am trying to bring about circumstances in which respect as distinct from mere lip service is shown to different points of view.
Senators Bacik and Norris are correct that there is a degree of unenforceability about a child's right to his or her biological parents, particularly when one parent is deceased. Let us remember that the proposal in the amendments tabled by Senators Bacik and Norris is to directly include same-sex adoptions. A judgment must be made when the suitability of parents for adoption is being considered. It is astonishing that the Minister of State and others believe that many issues, for example, the means of prospective adoptive parents and whether they have the correct attitude to parenting, must be considered in determining whether people are suitable for adoption. This process is lengthy and one which I support. Bizarrely, however, I have not heard anything to suggest the Government believes that the presence of a father and a mother should be considered to be a particular advantage when people are being assessed. That is the minimum one would expect. We should not be afraid to say that having two parents of different sexes is a definite advantage, in the same way as having sufficient means and a correct attitude to parenting are considered advantages.
There appears to be a dangerous culture of political correctness which is deliberately blind on that issue. Is such blindness in the best interests of children?
David Norris (Independent)
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I welcome the fact that my colleague, Senator Bacik, referred to the case of Mrs. Gill. I do not believe she would object to her name being used in this debate. Mrs. Gill is from a farm outside Birr in County Offaly in the heart of Ireland. Her daughter was killed in a road traffic accident. She desperately wanted her daughter's same-sex partner to be recognised but that was not possible. When one has this level of commitment to the sort of change we are seeking from middle Ireland, we must listen again. We must also listen to the voice of the children in question.
I hesitate to say the current position is unchristian. I will leave that to George Bush whose Christianity led him to bomb hundreds of thousands of people to extinction. I was never the media spokesperson for the Roman Catholic archdiocese of Dublin, as Senator Mullen was, and my habits of speech and intellectual curve, so to speak, do not always follow the Anglican model, from which I diverge greatly.
Phrases such as "sinister thought control" and "dangerous culture of political correctness" were used. Having been invited to place on record certain matters, I will do so. Senator Mullen will remember an occasion during a previous debate when he leaned across to me and said that if I continued he may have to rake up a certain article which appeared in——
Rónán Mullen (Independent)
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On a point of order, I did not say that.
Rónán Mullen (Independent)
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I call on Senator Norris to withdraw that remark.
Rónán Mullen (Independent)
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I will place on record the precise circumstances of the conversation.
David Norris (Independent)
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I am also happy to do so. The conversation referred to a nasty piece in a tabloid newspaper which suggested I was promoting sex with children. That is sinister thought control which can be denied as no one can say one way or the other whether the conversation took place because, unfortunately, the microphone may not have picked it up.
Rónán Mullen (Independent)
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I, too, am happy to place on record the details of the conversation. I call on Senator Norris to withdraw the untruthful version of events he provided.
Paddy Burke (Fine Gael)
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Senator Norris should speak to the amendments.
David Norris (Independent)
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I do not propose to press the amendment or say any more about it. I do not speak on this issue very often because I have done so in the past. Like everywhere else, 90% of the people in the constituency I represent are not homosexual. While it is important to consider many other issues, as I have consistently done, there are circumstances when it is necessary to discuss this issue. If we spent the entire afternoon discussing this one amendment it would distort our responsibility towards this legislation.
Rónán Mullen (Independent)
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I am sorry, but I must respond to what Senator Norris has put on the record. The Senator was being rather uncharitable about certain people whose traditions and views——
Paddy Burke (Fine Gael)
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Senator Mullen, this has nothing to do with the amendment.
David Norris (Independent)
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He would hardly remember it if he did not say it. How could he remember it?
Rónán Mullen (Independent)
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Because Senator Norris sulked about it for three weeks.
Paddy Burke (Fine Gael)
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Senator Mullen, I have ruled you and Senator Norris out of order. You are straying completely away from the amendment.
Rónán Mullen (Independent)
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Will you call on Senator Norris to withdraw his comment, a Leas-Chathaoirligh? That is not what happened. I criticised certain comments he made in Magill. He denies having made those comments, but a source in Magill tells me he was reminded about them three times, yet he was happy to go ahead with publication.
Paddy Burke (Fine Gael)
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I do not know what the Senators' conversation was about, but it has nothing to do with the amendment before us.
Rónán Mullen (Independent)
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Then we will have to find another forum in which to decide the truth of the matter, because Senator Norris has sought to misrepresent the situation.
Senator Norris talked about the case of Mrs. Gill. It should be perfectly possible to give children rights and to acknowledge they have them in such a situation without necessarily envisaging same-sex adoption or a formalisation of the relationship. I would have thought that if one member of a same-sex couple was a biological parent and both had care of the child, it would be in the best interests of the child for the couple to contract privately to make sure the child was at no disadvantage in the event of the death of one or other parent.
We could also consider presumptive schemes, for example, whereby we could ensure the law would protect the child's rights. However, we must avoid the mentality that sees the adoption of children in any circumstances as somehow the right of the parent. It is the child's right to be in the optimum circumstances. The State cannot ignore, nor should it ignore, the fact that in considering what is optimum in society it must have regard to time-honoured tradition, the statistically supported importance of two-parent families, biological if possible, and the complementarity of the male-female relationship. I do not think I am being very radical or very conservative in proposing that.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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There are circumstances in which older children, such as 16 and 17 year olds, are adopted, and whenever a child is over seven his or her own opinion is taken into account. If a child, particularly an older child, were to say he or she wanted to be adopted by the partner of his or her mother or father, that could not happen under the current legislation and our constitutional position. However, the rights of children must be central to all of this. The discussion has had a tendency to stray away from these important issues.
I understand both amendments are being withdrawn but I want to address some of the questions that were put to me directly. Would I consider adoption or guardianship rights in the context of the civil partnership Bill? I cannot anticipate the discussion on that Bill, but the Senator is right in saying that is the correct forum for that major discussion rather than in the context of adoption rights. The rights of children in the context of adoption is quite a specific area on which most of the commentary has focused. There will be ample opportunity to discuss these issues at that later time, but I cannot anticipate or commit to what will be contained in that Bill. I have my own opinions, but I am standing here as a representative of the Government and our position is that we intend to stick with the current eligibility and suitability arrangements. I understand the amendments are being withdrawn and we are satisfied with that position.
Fidelma Healy Eames (Fine Gael)
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I was delighted the Minister of State offered to the House the information that same-sex couples currently foster children in Ireland. That information is not well known and it is very useful in terms of the overall direction we are taking in this new and sensitive area.
I want to clarify one or two things for the sake of my colleague, Senator Mullen.
Fidelma Healy Eames (Fine Gael)
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Indeed. I did not think he was holier than me at all.
Fidelma Healy Eames (Fine Gael)
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When I talked about the holier-than-thou tone it was not directed at the Senator personally but rather at his line of argument.
Paddy Burke (Fine Gael)
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Senator, this has nothing to do with the amendment. We are discussing amendments Nos. 3 and 20.
Fidelma Healy Eames (Fine Gael)
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I will stick to the amendment. This is a very——
David Norris (Independent)
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That is a very political distinction, if I may say so.
Fidelma Healy Eames (Fine Gael)
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I wish to stick to the amendment, which is concerned with whether same-sex couples should be allowed to adopt children in this jurisdiction. The righteous tone is a little damaging. If only life were so simple and straightforward. The Senator's approach has worked perfectly for me. I am not talking about something with which I do not agree, but I am thinking about how complex life is for many families out there.
Paddy Burke (Fine Gael)
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The Senator is straying away from the amendment.
Fidelma Healy Eames (Fine Gael)
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I am not straying from the amendment.
Paddy Burke (Fine Gael)
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The proposers of the amendment have indicated they will withdraw it.
Fidelma Healy Eames (Fine Gael)
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I wish to finish my point. It was regrettable that the word "destructive" was used, because it is a particularly damaging word in the context of parents and babies. I would use this word, however, in the context of which Senator Fitzgerald spoke — the damaging homophobic attitudes that have been upheld in our school system. These have contributed to serious mental health problems in some of those affected and, according to another study with which I am involved, to early school leaving.
In an Oireachtas study currently being carried out, we are looking at a group of students who suffered from homophobic attitudes and investigating how it has contributed to their decisions to leave school. Even this is almost minor compared to the future effect on their attempts to build their own families. It is a complex issue and one that does not go in straight lines. I thank the House for listening to me and I believe this is relevant to the amendments under discussion.
Ivana Bacik (Independent)
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I propose, as I have done throughout this debate, to be concise and to keep my comments directly relevant to the amendments we are discussing, which were tabled by me and Senator Norris.
Like Senator Healy Eames, I welcome the Minister of State's point that same sex-couples are currently fostering children. We allow single people to adopt, as indeed we should. I am glad we do not confine adoption eligibility to married couples but extend it to single persons also. As I said, perhaps we should consider extending these rights beyond that to cohabiting couples. We allow gay couples to foster; clearly, the next step is to allow them to adopt. When everyone is working in the best interests of the child, there is no policy rationale for continuing the discrimination against gay couples that precludes them from being considered eligible for adoption. It does not matter to me or to any gay couple seeking to adopt whether it is done through this Bill, the civil partnership legislation or another Bill. However, it is important that the Government commits to this as it is clearly in keeping with Government policy of ensuring the best interests of the child, which is to be in a loving home, whatever the sexuality or gender of the parent or parents.
I asked the Minister a direct question, which he did not answer, about regularising the position of children currently living in a home in which one parent is a birth parent and his or her — it is usually her — same-sex partner is a non-birth parent. The partner currently has no right even to be considered as a guardian of the child and therefore the child has no right to a legal relationship with that parent. Would the Minister of State consider regularising the position of those children in some other way so that their relationship with their non-birth parents may be recognised in law? This could be done in ways other than through adoption.
It might be less cumbersome to adopt something similar to the statutory declaration for cohabiting birth fathers, as I suggested earlier. It would be entirely in keeping with the State's admirable policy of supporting the best interest of the child and a secure and loving home.
Rónán Mullen (Independent)
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I concur with Senator Healy Eames in regard to the horror of bullying in schools. I declare an interest in that I sit on the boards of approximately 120 secondary schools in this country through the CEIST network. I would wish the school which Senator Healy Eames and I attended and any other school with which I am involved to be cold houses for bullies, regardless of whether their bullying is on the basis of a person's appearance or same-sex attractions. That has to be made clear.
We are at present debating two amendments which would bring about the institutionalisation of same-sex adoption. I remind Members that I have not proposed an amendment to the Bill which would seek to second guess what happens under the law. I am aware that single people can apply to adopt and that children are sometimes adopted into situations involving de facto same-sex couples. Members will not see an amendment from me which calls for that to end. The Minister of State is correct to outline circumstances in which a 17 year old child might wish to be adopted into a particular situation. The best interest of the child would probably dictate that he or she be left with his or her biological parents, who may be a same-sex couple.
I am speaking against the amendments proposed by Senators Norris and Bacik, which would create as a norm the concept of same-sex adoption.
Paddy Burke (Fine Gael)
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The Senator is being repetitive. His points have already been made.
Rónán Mullen (Independent)
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I would prefer not to be guided in that regard in circumstances where a time limit is not imposed. We all have our faults and perhaps mine is that I am somewhat repetitive.
Paddy Burke (Fine Gael)
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We have spent two hours on these amendments.
Rónán Mullen (Independent)
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I suggest that I have done no more than respond to the points made against me. I have now addressed these points and the Leas-Chathaoirleach will not have to suffer any further repetition.
Frances Fitzgerald (Fine Gael)
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I welcome the Minister of State's response to the issues that have been raised. The facts that he set out in regard to fostering are valuable because they have not previously been published. The more such information is made available to the public, the better. To take up Senator Mullan's comments on the Mrs. Gill situation and mechanisms for a legal framework around that contact, perhaps the Minister of State can respond on Report Stage with proposals for a solution.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Senator Bacik asked me about the statutory declaration procedure for guardianship. I understand the father must be named on the child's birth certificate in order to make such a declaration. Prior to the 1997 Act, one was required to apply to the High Court.
Ivana Bacik (Independent)
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One had to apply to the District Court.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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The statutory declaration is clearly unable to address the issues raised by Senator Bacik. I would not wish to make a commitment in this regard. The guardianship rights afforded to natural fathers in an unmarried situation are limited to those who are named on the birth certificate in respect of making a statutory declaration in the absence of applying to the courts.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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They can apply by way of statutory declaration.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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We make major policy decisions on the basis of consultation and comparisons with other jurisdictions. I do not want to make any commitments until we have considered the issues in more detail.
Ivana Bacik (Independent)
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I understand that but I have carried out the procedure on behalf of two children. The Minister of State is correct that the right is particular to natural fathers. A separate issue arises where the mother does not consent to the natural father being named as a guardian, regardless of whether he is on the birth certificate. An application to the courts is required in the latter instance but where the mother consents to the natural father being a joint guardian on an equal basis, the two can simply sign the declaration before a solicitor.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Must not the father be named on the birth certificate?
Ivana Bacik (Independent)
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The Minister of State may be correct. In any event, we are not discussing a birth parent in the context of the Bill before us. I am pointing out that a clear procedure exists in law whereby the natural mother consents to somebody else being a joint guardian with her. I do not expect the Minister of State to commit one way or another now but I ask him to consider a procedure for swearing a statutory declaration before a solicitor where the natural mother consents to signing an affidavit verifying that she was in a loving relationship with her partner. It offers an alternative route to recognition of a partner in cases where a child lives with two parents but has no legal relationship with one of them. People just get on with their lives in the normal course of affairs but difficulties arises where one party dies and the child has no inheritance rights or other legal rights which I need not outline. A number of problems can arise in the absence of a legal relationship with a non-birth parent.
David Norris (Independent)
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If I promise to make no further contributions, will I be permitted to make four short points?
Paddy Burke (Fine Gael)
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Do they pertain to the amendments or the section?
David Norris (Independent)
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They are directly related to the amendments and respond to the significant points that have been raised. The glory of our Constitution is its organic nature. It did not stop in 1937. This is why one can elicit unenumerated rights from it. If it was a static document rather than being subject to revision by the wish of the people, we would be stuck at the point where its framers placed women exclusively in the home. That provision was removed by a referendum of the people of Ireland.
David Norris (Independent)
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It definitely should be removed. I find that difficult to believe. At least I have learned something. We are back in the 19th century.
David Norris (Independent)
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I have been proven disastrously wrong in that regard and I am prepared to admit that my ignorance is yet again revealed to be one of the great natural resources of Ireland.
Rónán Mullen (Independent)
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The Senator should not criticise my grammar.
Paddy Burke (Fine Gael)
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Senator Norris should proceed to his second point.
David Norris (Independent)
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The Minister of State claimed that Britain lacks a constitution. I think they have a constitution but it is unwritten. How else would her gracious majesty, Queen Elizabeth II, by God ordained, be described legitimately as a constitutional monarch?
Paddy Burke (Fine Gael)
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I fail to see the significance of the Senator's comments to the legislation before us.
David Norris (Independent)
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My next point, on the recognition of foreign marriages, is even more important. Arrangements are in place for the recognition of such marriages and I do not consider it appropriate to impugn them. Foreign divorce can also be recognised. In that context, I find it tendentious to speculate on the notion of polygamy. I do not find such discussion flattering or well informed but it is of a piece. Subsequent to the establishment of the Wolfenden committee to investigate homosexuality and prostitution, a subsequent report was issued in this country which linked homosexuality and drug abuse. One gets a little weary as a respectable old fairy being everlastingly compared to tarts and junkies.
Ivana Bacik (Independent)
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I do not wish to prolong the debate on this but I did check Jeffrey Shannon's excellent book which contains no reference to the natural father needing to be named on the birth certificate. Clearly, however, he must be the natural father for the statutory declaration to be made. If an issue arose, proof would be required that he is the natural father because the right attaches only to the natural father. Clearly, this would be an extension of the right to a statutory declaration creation of guardianship. I raise this because this happens only with the consent of the natural mother. Otherwise, the court application must be made. This is a useful mechanism.
Paddy Burke (Fine Gael)
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Amendments Nos. 4, 6, 7, 15 and 16 are related and will be taken together by agreement.
Phil Prendergast (Labour)
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I move amendment No. 4:
In page 20, between lines 8 and 9, to insert the following:
"(a) the birth of the child has been registered, and either the particulars of the father have been registered or the mother has sworn and furnished to the accredited body a statutory declaration that the father is unknown or missing, and cannot be traced using reasonable inquiries, unless the court permits placement notwithstanding a failure or refusal to swear such a statutory declaration,".
I welcome the Minister of State. On amendment No. 4, the Bill does not specifically require a child's birth to be registered before placement for adoption, which is an omission. More fundamentally, we would argue that the father's details should be registered where adoption is contemplated unless the mother completes the statutory declaration to the effect that the father is unknown, missing or cannot be traced without using reasonable inquiries.
On amendment No. 6, section 16 merely gives the father the right to apply to be consulted in regard to adoption. It is extraordinarily insulting and offensive to state in legislation that a father has only the right to be consulted in regard to permanent removal of his child from him. It is unbelievable that in 2009 this minimal level of protection is being proposed in law. We wish to protect fathers in this situation by providing that fathers who are named on a birth certificate can veto adoption unless the court gives the go ahead.
On amendment No. 7, the power to dispense, without any attempt to even notify the father, is much too wide. The High Court can dispense without notice to the father if it believes such action inappropriate. We suggest this provision be tightened up considerably and that where conception of the child was the result of an offence, namely, rape or incest, there should be no need to notify the father and that otherwise notification should be given. Amendments Nos. 15 and 16 are similar and do not require further comment.
May I speak at this point to amendment No. 12?
Ivana Bacik (Independent)
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The general theme behind these amendments tabled by the Labour Party requires greater consideration. It is incumbent upon us to ensure the natural father has particular rights prior to a child being placed for adoption. The problem with the amendments, and in particular amendment No. 6, is that they are far too rigid in terms of the role they provide for the natural father. Also, they are not sufficiently balanced.
I commend the Minister on section 16 which is close to the current situation under the Adoption Act 1998 which provides rights of consultation with the natural father. Section 16, as drafted, provides for a much better balance. It is important that the natural father be consulted and that he should have the right to apply to the authority. However, we must be realistic. As has been stated already, in circumstances where a mother is giving up a child for adoption the reality is there is rarely a good and lasting relationship between the parents. I have already put on record other circumstances such as where a child is conceived through rape, where the father of the child is estranged or where the mother, for good reasons, does not wish to have any continuing relationship between her and the father or the father and child.
The amendments, in particular amendment No. 6, do not recognise that reality and place too great a rigidity on the rights of the father. I am concerned about the proposed new section 16(1) which states a child shall not be placed for adoption nor may an application be made without the consent of the father. This goes against the Bill in situations where, for example, the father has deserted, is unknown or has never had any link with the child beyond conception. I caution against taking on board these amendments.
Similarly I am concerned about amendment No. 7 to section 18. Amendments Nos. 7 and 16 have the same effect and state: "the father has committed an offence such that". It appears to me the Bill as drafted covers the mischief wherein it provides that:
. . . where the Authority is satisfied that, having regard to—
(a) the nature of the relationship between the father and the mother, or
(b) the circumstances of conception of the child,
it is inappropriate for the accredited body to contact the father...
This covers the situation. It would be unduly rigid to require proof of committal of a criminal offence. There may be all sorts of reasons even where a rape has been committed that the mother has not reported it as such. That is the reality. There may be all sorts of reasons why it is impossible to say that in fact an offence has been committed. The authority must be satisfied about the circumstances of conception in order to deem it inappropriate to contact the father. I believe it is best to leave this as is and to give the authority flexibility in this regard. It is important to retain the natural rights of the father. However, we must be careful not to set in stone a rigid system whereby even where there is effectively no ongoing relationship between the child and the father, the father maintains a veto. The effect of these amendments would be to hamstring the authority, in particular amendment No. 6. Amendments Nos. 7 and 16 place too onerous a burden on the authority or the mother. I am opposed to these amendments.
Fidelma Healy Eames (Fine Gael)
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I have two concerns in relation to these amendments. I am inclined to agree with Senator Bacik in regard to the rigidity of section 16 in particular. What is the situation if the father cannot be found or if there is not certainty — this does relate to only this amendment — in terms of who is the father? The Minister of State might address those questions.
Currently as I understand it, the natural father has rights and must be consulted. As far as I am aware, that is how adoption works. In a case where a father is consulted and wishes not to be named on the birth certificate, what are the rights of the child as opposed to the rights of the father or mother? I look forward to hearing the Minister of State's response on those two issues.
Rónán Mullen (Independent)
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I have sympathy with both sides of this argument. There is an echo of a previous debate here because we are speaking in this regard of the importance of a father in a child's life. I know we are operating within a particular constitutional architecture and as such the Minister of State will be so guided. I sympathise with some of the concerns raised by Senators Bacik and Healy Eames. However, the substance of section 16 appears to be rather onerous, regardless of whether it reflects the status quo, in that it requires a father to advise the authority of his wish to be consulted in regard to a proposal to adopt. Is it not possible to draft a provision that establishes that where a child's father is guardian, he must be consulted while providing for the circumstance where an offence, such as rape and so on, might have been committed?
Is it possible to exclude in certain circumstances the right, which otherwise exists, for the father who is a guardian to be consulted and to provide that where the father is not a guardian he may advise the authority of his wish to be consulted? Is it not possible to deal with the different types of circumstance that can arise giving particular and due respect in the context of all we say nowadays about the importance of fathers in children's lives? Should that not be reflected in new language that provides for certain duties on the part of the authority towards fathers who are guardians rather than putting the onus on the father to advise the authority?
Ivana Bacik (Independent)
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On a point of order, there is a later provision that does exactly what Senator Mullen says. Section 17(2)——
Rónán Mullen (Independent)
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Is it necessary to make these sections more harmonious? Is there a danger that one will operate against the other in certain circumstances? We need to consider these issues, with deference to Senator Bacik's legitimate concerns and to the fact the Minister of State will have taken careful advice on where stands the Constitution.
While it is extremely undesirable that somebody guilty of rape, albeit the matter was never tested in court, would be consulted, surely we should operate in general terms on the principle that a person is innocent until proven guilty. Are we or is Senator Bacik straying from that to a degree? I do not offer that point in a dogmatic way. These issues must be kept in tension with each other but I am concerned that we are still leaning too far away from the right of a father in normal circumstances to be consulted. If a father has applied for and is the child's guardian then in all circumstances the onus should be on the authority to consult.
Ivana Bacik (Independent)
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Section 17(2) continues the current regime where in fact "the accredited body before placing the child for adoption, shall take such steps as are reasonably practicable to consult the father". There is provision to consult the father. There is a separate provision about which I spoke——
Paddy Burke (Fine Gael)
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We are not discussing section 17, we are on section 13.
Ivana Bacik (Independent)
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I know but in fact there is already sufficient remedy under the Adoption Act 1998, and under the provisions that replicate most of the same procedures in this Bill, the natural father is to be consulted and has the right under section 16 to give notice of his wish to be consulted. I accept that one should be innocent until proven guilty in the criminal law but we are talking here about the rights of the child. It would be most unfortunate if an authority had to wait for a conviction before it could act on concerns about particular individuals. This Bill concerns the rights of the child. It would be unduly rigid to insist on evidence of a criminal offence.
Rónán Mullen (Independent)
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I acknowledge that Senator Bacik may have scrutinised this more carefully than I have. Section 17 states that the "accredited body...shall request the Authority to provide it with a copy of any notice received by the Authority from the father".
Paddy Burke (Fine Gael)
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We are not discussing section 17. We are on section 13.
Rónán Mullen (Independent)
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I accept that. The consultation requirement is in section 17(2).
Barry Andrews (Dún Laoghaire, Fianna Fail)
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I thank Senator Bacik for her work in helping me to get the Bill through the House. She is right. We do need to read the Bill in light of the sections coming up and clarify some of the issues legitimately raised. The rights of the father are much improved in this legislation. The father's consent cannot be dispensed with without reference to the High Court and that is a dramatic improvement on what was there before.
Senator Prendergast is not here to press the amendment but we do not intend to accept it because we feel the right balance is struck and section 19 states that in all questions "the State, the Authority or the court...shall regard the welfare of the child as the first and paramount consideration". I apologise to the Leas-Chathaoirleach for going ahead. That will be the guiding principle in assessing whether the father has been appropriately consulted and if it is sought to dispense with the consent of the father.
I oppose amendment No. 4 because I think the right balance is struck between the rights of the natural father, the mother and of course the rights of the child.
Phil Prendergast (Labour)
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I will not press the amendment but I am surprised by the Minister of State's response which I listened to outside.
Fidelma Healy Eames (Fine Gael)
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On a point of order, I did not get an answer to my question.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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What was the question?
Fidelma Healy Eames (Fine Gael)
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I know but I asked about a father who is consulted but chooses, wishes and requests not to be named on the birth certificate. What then is the right of the child?
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Will the Senator repeat that?
Fidelma Healy Eames (Fine Gael)
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If the social worker goes to the father and explains that he has a child and the father chooses to reject the child——
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Is he opposing or supporting the adoption?
Fidelma Healy Eames (Fine Gael)
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He may be supporting the adoption but does not wish——
Barry Andrews (Dún Laoghaire, Fianna Fail)
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Is the Senator mixing this situation up with guardianship?
Fidelma Healy Eames (Fine Gael)
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My question is about the birth certificate.
Ivana Bacik (Independent)
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Provisions relating to birth certificates are contained in the Civil Registration Act.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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That is a guardianship issue. Maybe we can discuss this again.
Ivana Bacik (Independent)
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Guardianship is separate from adoption.
Fidelma Healy Eames (Fine Gael)
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I noted it was not here but thought it was an important issue in respect of the rights of the child.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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My official has given me a prompt. Section 22 of the Civil Registration Act 2004 provides:
The father of a child who was not married to the mother of the child at the date of his or her birth or at any time during the period of 10 months before such birth shall not be required to give information under this Act about the birth.
The registrar shall enter the father's details in the register if the mother and father jointly request this or on the production to the registrar of a court order or statutory declaration naming the father of the child.
Ivana Bacik (Independent)
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That answers the earlier point because in order to sign a statutory declaration to be a joint guardian one does not have to produce the birth certificate or show that the father was named. That is what I thought and I am grateful that it has been clarified and that in order to sign the statutory declaration giving the birth father rights of guardianship jointly with the mother there is no requirement that the father be named in the birth certificate. That is remedied by the Civil Registration Act which strengthens my argument that there could be a similar mechanism for the non-birth partner of a birth mother.
Fidelma Healy Eames (Fine Gael)
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We are talking so much about rights today, the rights of couples, fathers, mothers, and of the child but is it fair to the child that the father can say he does not wish to be named?
Barry Andrews (Dún Laoghaire, Fianna Fail)
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That is not a matter for this legislation but it is worth scoping out on another occasion.
Fidelma Healy Eames (Fine Gael)
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It could easily have been written into this Bill.
Barry Andrews (Dún Laoghaire, Fianna Fail)
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If the Senator wishes she can table an amendment to that effect but it is not appropriate in this Bill.
Fidelma Healy Eames (Fine Gael)
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Would it be appropriate on Report Stage?
Barry Andrews (Dún Laoghaire, Fianna Fail)
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The Senator can submit an amendment.
Phil Prendergast (Labour)
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I will not press the amendment but I would like the Minister of State to give further consideration to the text.
5:00 pm
Frances Fitzgerald (Fine Gael)
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I move amendment No. 5:
In page 20, paragraph (b), line 30, after "effect" to insert the following:
"stating that she has been fully counselled as to the effect of her decision, that she understands the effect of her decision and that she has made her decision freely".
There are some good points in this section which deals with the "Explanation to mother or guardian as to effect of adoption". It provides six criteria that must be met before the adoption goes ahead. Our amendment suggests including another criterion, that the mother has been counselled as to the effect of her decision, understands it and has made it freely. While the Minister of State might not want to accept the detail of these words, would he accept the principle that a provision of this nature should be built into the legislation? In other words, a certain amount of work should be done with the mother before a final decision is made. If one examines the history of adoption over the years, one will find cases of mothers who now feel, retrospectively, that not enough work was done with them before they gave their children up for adoption. Many women believe that they did not have enough time or information to make their decision or that the consequences of what they were doing were not spelled out. When a woman is deciding whether to give her child up for adoption, it is obviously a highly emotional time. That makes it all the more important that she is given every opportunity to discuss the decision, to get counselling and to receive as much information as possible. I will be interested to hear the Minister of State's comments on this straightforward amendment.
Ivana Bacik (Independent)
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I know time is against us, so I will make a few brief points. I fully support this amendment, which adds greatly to the tenor of this section of the Bill. I hope the Minister of State can accept it.
Paddy Burke (Fine Gael)
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As it is now 5 p.m., I have to ask the House to report progress.
Frances Fitzgerald (Fine Gael)
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Some of us might not agree that progress has been made.
Progress reported; Committee to sit again.