Monday, 30 March 2015
Children and Family Relationships Bill 2015: Report and Final Stages
Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on that amendment. Each amendment on Report Stage must be seconded. Amendment No. 1, in the names of Senators Rónán Mullen, Feargal Quinn and Jim Walsh, has been ruled out of order as it is in conflict with the principle of the Bill.
That is not allowed. I will not go down that road, otherwise we will be here until the cows come home. As I said, I reflected on it and have looked at the ruling. I will not get into a debate on it because it contravenes-----
Could I just say in passing that it is a pity? I absolutely accept the Leas-Chathaoirleach's decision but it is a pity the Cathaoirleach does not give reasons for rulings. I sympathise with Senator Walsh on this issue.
That is not a point of order. I was very fair with the Senator last week. I will not allow this otherwise it will keep cropping up. I have been told it is the Cathaoirleach's or the Leas-Chathaoirleach's position to make a ruling and to stick to it and I do not want to open up the situation.
I move amendment No. 2:
This amendment is designed to ensure that DAHR procedures carried out in other Europe Union member states would qualify for the purposes of the Bill and the parentage provisions and all the same requirements for information, consent, criteria for the clinics and so on would apply. It is to address a concern raised with me that the Bill is too restrictive in only allowing people to have procedures carried out in the Republic of Ireland. For example, it would preclude people from accessing services just up the road in Northern Ireland. It also potentially could fall foul of EU law in terms of being anti-competitive without good reason.
In page 11, to delete lines 10 to 18 and substitute the following:
" "DAHR procedure" means a donor-assisted human reproduction procedure, being any procedure performed in a Member State of the European Union including the State, with the objective of it resulting in the implantation of an embryo in the womb of the woman on whose request the procedure is performed, where -(a) one of the gametes from which the embryo has been or will be formed has been provided by a donor,
(b) each gamete from which the embryo has been or will be formed has been provided by a donor, or
(c) the embryo has been provided by a donor, provided that, where the procedure is performed in a Member State of the European Union other than the State -(i) the person who performed the procedure was authorised to do so under the law of the place where the procedure was performed,
(ii) the person who performed the procedure and the facility in which the procedure was performed was, at the time of the procedure, fully compliant with the requirements of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, and
(iii) the person who performed the procedure and the facility in which the procedure was performed has fully complied with all relevant requirements of this Part and of Part 3, as if the procedure was performed in the State;".
It would be fair enough if we were concerned that the same standards could not be applied abroad and that is why I have restricted the amendment to other European Union member states. Where clinics in other EU member states can satisfy all of the provisions of the Bill and collect all the required data, including the consent, and ensure that exactly same procedures are in place, then people should be free to use those facilities. That is basically from where the amendment is coming and I would appreciate the Minister's response.
The purpose of this amendment is to change the definition of a DAHR procedure so that it includes certain procedures taking place outside the State, as the Senator said. The intended effect is presumably to allow the assignment of parentage under section 5 where a child is born in the State as a result of a DAHR procedure which takes place outside the State.
I considered this issue in the drafting of the Bill and I got legal advice from the Attorney General in regard to it because I was very conscious, as the Senator was, that when children are born through DAHR procedures which occur outside the State, we are effectively unable to assign parentage in section 5. The obvious difficulty is that there is no possible means of verifying compliance with Parts 2 and 3 of the Bill as we are now deciding that parentage will be assigned and consent will be given. If it is outside the State we do not have the authority to check the authorised officers. For example, the inspection powers of the Department of Health, or an authority in the future, are under section 1. They have no authority to act outside the State and to exercise their inspection powers. The Minister for Health does not have any authority to direct compliance by a DAHR facility outside the State. That is obvious and is a matter of law. This means the State has no means of safeguarding and securing the identity rights of children born through a DAHR procedure taking place outside the State and thus cannot purport to assign parentage under section 5. This situation is not unique to Ireland. Similar issues arise in other jurisdictions where couples undertake fertility treatments in one state and the child born as a result of those treatments is born in a different state.There are no easy or useful answers to clarify the parentage of these children. Where there is, for example, the donation of an egg and the mother gives birth in this countrym, she will be the mother under Irish law, as we saw in the recent court case.
I cannot accept the amendment because the State cannot provide the necessary guarantees to underpin identity rights, but I do have two observations to make in answer to the question. Several Senators mentioned last week that this underscored the need for a harmonised international approach to the issue of parentage in cases of donor assisted human reproduction in the interests of the intending parents and the children to be born. The Hague conference on private international law is undertaking an important project in examining these issues and will report on it, but it will take some time to come to fruition. As Senator Jim Walsh mentioned last week, there is a need for co-ordinated action at EU level to begin to discuss this issue to have a uniform approach. Although the parentage of children born in the State as a result of procedures taking place in other states cannot be assigned under section 5, the parents will have certain legal options. They may, for example, be able to jointly adopt the child under the amendments being made to the Adoption Act 2010 in order to secure their joint legal relationship with the child. This is important. It ensures there will be a path to parentage in the best interests of the child; therefore, there are options. The second member of the couple will be able to apply to be a guardian of the child with the possibility of becoming a full guardian. To repeat, where there is an egg donation and the mother gives birth in Ireland, she will be deemed to be the mother of the child.
I thank the Minister for her response. I appreciate the challenge in recognising services that have been carried out overseas, particularly in such a sensitive area. That is why I did not draft an amendment to recognise services carried out anywhere in the world because that would have been very problematic. Instead, I restricted it to the European Union. I agree that there is a need for a harmonised international response, particularly in the European Union which has done some work in this area. Directive 2004/23/EC sets standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. There is a need, however, for more work to be done at EU level. Ideally, somebody accessing these services in any European state should be guaranteed a certain standard of service. All European citizens should also have the same rights to their identities as we are promoting here, the limited rights which the Minister has included in the Bill and the more extensive ones I would like to see the European Union guarantee some day to all EU citizens born through the use of assisted human reproduction, be it in this or any other member state. This should be a priority at European level to co-ordinate and protect the rights of all EU citizens.
I will not press the amendment. I wanted to raise the issue because it is important. I ask for the Minister’s reassurance that she will take up this issue at EU level with her counterparts and the Minister for Health. From an Irish perspective, he might consider it again in the forthcoming legislation on assisted human reproduction, having conducted more research with his European partners. There is a big gap in the legislation because this is a small country and people will travel to avail of services. It will be unfortunate if they are left in a situation of uncertainty and have only the option of adoption. I would prefer to see this area being properly regulated across Europe in a consistent way to safeguard everybody’s rights.
I move amendment No. 5:
It is clear to me that at the end of this process the Government will not have accepted a single reasoned amendment to blunt the radical agenda behind the legislation. This goes to show that it has no interest in protecting the right of a child to a father and a mother or even to two parents having a genetic link with the child they are raising. The legislation means that Ireland will now declare that it makes no difference whether a child's biological parents raise him or her or whether two men or two women who may or may not be related do so by design. We have moved well beyond regulation for children who have been conceived through this process. We are providing a mechanism to allow this to happen with increasing regularity in the future.
In page 13, to delete lines 6 to 8 and substitute the following:“(2) A child born as a result of a DAHR procedure shall have two parents.”.
Far from it being, to use Senator Averil Power’s words last Friday, a case of prejudice against different families, this process in the Seanad has shown that only a few are willing to stand up for children’s rights to their full when they include the core essential right not to be deprived of the possibility of having a father and a mother, the child's own father and mother in particular. Anything that excludes, or contemplates excluding, this possibility for a child by design is necessarily an attack on children’s rights. The Bill has allowed and will allow an industry to set the terms around the ethics of the creation of human life. It centres only on the desires and aspirations of adults, however understandable and, in some cases, noble these desires and aspirations are; nonetheless by centring only on the desires of adults, be they people who want to have children or the international in vitro fertilisation, IVF, industry, it falls short of what children are entitled to expect from the Government and the Legislature.
The legislation proceeds on the basis that there is a right to a child. There is no such right. As a society, we collectively ought to restrict scientific practices where they are harmful or damaging to the welfare of vulnerable people. There are few groups in society more vulnerable than children. The Government has not shown that children will not be harmed by elements of this legislation. Any reference from the Government or supporters of the legislation to the protection of children, whether children’s voices being heard in court proceedings, is a minimalist understanding of what a child is entitled to expect.
There is a growing on-line community of people in the United Kingdom conceived through DAHR who speak about their innate desire, which their situation could not satisfy for the real parent, for the father or the mother, known or unknown, who is not there. I have mentioned Dr. Joanna Rose, a woman who was conceived using sperm that her genetic father had sold, who has given eloquent testimony about the sense of loss of people who were conceived in this way. She is regularly told she should be grateful and that she has no right to express any sense of loss, but, as matters stand, excluding the possibility of new legislation and, as I put it to the Minister last week, if the referendum on marriage equality fails, it will be incumbent on her to revisit this legislation because it and its anti-child aspects will have to be at the core of the referendum debate. Unless there is new legislation, the man who donated the sperm to create somebody such as Joanna Rose could have hundreds of offspring. We spoke about a person potentially never knowing his or her half-sisters and brothers. Not only is this a chilling potential reality to inflict on a child, but has the Government contemplated in any way the potential public health implications? This is what can happen when we regard life as something that can be created without reference to family, kinship, blood ties, history or any of those things that give us identity or a place in the world. Dr. Rose, for example, and the children who will be created or brought into existence under this new law, may never know their genetic siblings. They may never know their genetic parents, considering the paltry penalties, if any, that the Minister has put in place to deal with clinics which default on their record-keeping obligations. It is remarkable that a man who fathers a child on a one-night stand can be rightly pursued through the courts for maintenance payments whereas here a gentleman may have tens, if not hundreds, of offspring without the slightest regard for his moral or legal duty towards them. On the contrary, this law severs all such duties from him.
As I stated further in my Second Stage speech, we should have a Bill dealing with donor-assisted human reproduction issues. Indeed, the Minister has consistently referred to forthcoming legislation from the Minister for Health. Why, then, are we rushing this law through without such rules first being established in law? The reason is, of course, that this Bill is tied to the referendum. It is about normalising access to reproductive technology to new groups of adults or, in some cases, single adults before we have even set out the wider ground rules.
Every section of the Bill deserves to be rejected precisely because it is so reckless around children's rights and dignity and it is so manipulative in its timescale, in its political conception and in its delivery in these Houses.
I support this amendment on the basis that it reflects, as I am sure it did, what was intended in amendment No. 4, that the two parents shall be a father and a mother. That conforms well with all of the amendments which I put down and pressed at Committee Stage, and, consequently, could not re-enter here.
The Minister stated, in an earlier contribution in response to Senator Power, that parentage will be assigned. In other words, the State will decide. Nature and biology is being consigned to the dustbin and that creates serious difficulties, both for society and for children, as we move forward. The Bill decouples parentage from biology and assigns parentage to what it calls the "intending parents". The donor is reduced to a mere supplier of biological material. The concept of natural parents is relegated in order to promote a new concept of "intending parents", favouring a right of adults to have a child over that of children to have ties to their natural mother and father.
Many interest groups and lobby groups talk about the right of adults to have children using donors. Although I understand the human desire to procreate, I believe we must also think about the rights of other affected parties, including donor-conceived children and donors, in particular, the women in developing countries who have their ovaries hyper-stimulated using hormones, often without regard to their future physical or mental health, to harvest eggs used in commercial assisted-reproduction clinics in western Europe. I am concerned about the exploitation of women and in the main, these are from poorer countries and poorer families on which the globalised commercialised IVF sector relies. Our laws should not encourage commodification of the human person or the human body.
This Bill does not provide the comprehensive legal architecture required to deal with all of the complex family and children's rights issues that come about as a result of assisted human reproduction. Rather than introduce an inadequate Bill that radically re-imagines parentage, relatives, kinship and identity, Ireland should have the chance for a proper social conversation about all of these matters, such as whether children have a right to their natural identity and parentage and whether they have a right to a parent-child relationship with their genetic parents. In this conversation about such matters as ethics, globalised commercialised donor-assisted human reproduction and genetic relatedness, the right to know is not taking place because the Government has sought to rush this legislation through for its own political purposes in redefining marriage.
There are a number of persons who share that view. Since we embarked on this Bill over the past week, I have been surprised at the amount of contact I have had from persons, who are seriously concerned about what the Minister is doing and who forwarded other pieces of relevant information to me to highlight and substantiate their concerns. Recently, there was an article in the Irish Independentfrom somebody who would be disposed to Fine Gael but whom I cannot name because we are locked down and our constitutional right to expression is being infringed. It states:
"The State ... does little or nothing to face a situation in which one-third of children are born outside marriage.That is from somebody who would be disposed to the Minister's party, and has been in the past.
Yet all of us, apart from a few eccentrics, rightly believe that our system of monogamous marriage is good for society. Perhaps our politicians would do better to find means of strengthening it than engaging in an exercise aimed at solving a problem which does not exist. ...
Essentially this project is a sop to Labour from Fine Gael.
There was a thought-provoking article in yesterday's Sunday Independentand, presumably, it is one the Minister read. It refers to:
the persistent insinuation that biology is an arbitrary or inconsequential aspect of parenthood. Politicians, commentators and "experts" tell us that what matters in child-rearing is solely the quality of the "love" on offer and it is time for us to overcome our "obsession" with biological parenthood.The Minister made this point here. Where does that leave her when polyandrist, polygamous, trouples and other group time-limited marriage relationships come about, many of which may be loving, caring relationships? On the basis of the Minister's criteria, she will have no defence when they come knocking on her door to extend marriage to them.
The article in question further states:
[I]n many other jurisdictions legal parenthood arises automatically from biology, Irish jurisprudence identifies rights between parents and children as deriving from legal ties defined under the constitutional provisions governing the married family. ... but [here we acquire] such protections only if his or her parents are married to one another. ... Under our Constitution, a married family enjoys a high degree of autonomy, having rights that are inalienable and imprescriptible. In recent times, there has been growing dissatisfaction and protest concerning this constitutional way of seeing things, in part because it excludes from full constitutional protection unmarried families, now accounting for a third of all Irish families with children.Here the Minister is looking after approximately 230 - she stated the figures - whereas the hundreds of thousands who do not live within married couples will have no constitutional underpinning. It goes back to a point that I made on Committee Stage, when I put a question to Senator Zappone. There are other ways in which what the Minister is trying to achieve could be tackled but what she is doing, in the manner in which she is approaching this, will have detrimental effects for both children and society as a whole in the future.
I note another article from a recent Sunday newspaper from a gay man, whom I cannot name, who is on the record in other areas.He objects to same-sex marriage for two core principles. I will only go into the first one because his second one deals with the civil partnership issue which is not part of this debate. His first core principle is that the State, its agencies and others, charged with the welfare of children, should be able to favour a family unit that provides a mother and a father, and then he moves on to the civil partnership issue, which I will not go into. He said the result of allowing same-sex couples to marry is that agencies that are entrusted with finding parents to adopt and foster children cannot legally favour families that can provide a mother and a father, which all evidence suggests is the best environment children. Despite what the Minister says, that is in fact the case.
There was a recent article by a lady in the United States, whom I cannot name but who is on the record, and some Members may have read the article. She was brought up by a lesbian couple and has spoken out against gay marriage. She is a mother of four from South Carolina. She previously supported same-sex marriage and even took part in gay rights marches. She announced her change of heart in a article for TheFederalist,an American web magazine. She said, "I don't support gay marriage ... [because] it might not be for the reasons that you think". She added, " It's because of the nature of the same-sex relationship itself". The mother said that growing up she had supported and advocated for gay marriage but now that she can reflect on her childhood, she realises the long-term consequences that same-sex parenting had. She continued,: "[I]t's only now, as I watch my children loving and being loved by their father each day, that I can see the beauty and wisdom in traditional marriage and parenting".She argued that, "Same-sex marriage and parenting withholds either a mother or a father from a child while telling him or her that it doesn't matter.". She said, and she echoed my own sentiments which I included in my Second Stage contribution,"My father's absence created a huge hole in me, and I ached every day for a dad". The mother said, "[B]y and large, the best and most successful family structure is one in which kids are being raised by both their mother and father". According to her, "Gay marriage does not just redefine marriage, but also parenting". The Minister has clearly illustrated that in the Bill she has put before us. It promotes and normalises a family structure that necessarily denies us something precious and foundational. She concluded by saying that this is a hard conversation for gay people to have but stressed that it needs to be talked about. Reference was made in this House by a number of us, including myself, to the Dolce and Gabbana statement a few weeks ago and, in particular, the response from Elton John. I should not have named him.
-----said in the Dáil in 2010 that "Every child has a right to a mother and a father and, as much as is possible, the State should vindicate that right. That is a much more important right than that of two men or [two] women having a family". All of this apparently is being abandoned for reasons which I would like-----
-----he would know the basis on which I am supporting it. He can ask the proposer of it if he intends that it be a mother and a father. My interpretation of it is that this is what is intended by the reference to "two parents".
There is overwhelming evidence against what is being done here. Everybody knows it is being done for a singular reason, namely, to assist the referendum. My reason for objecting to all these sections dealing with the donor-assisted human reproduction is that it should have been on hold for much greater in-depth conservation, debate and analysis, including the effects on children in all the different strands of the diversity of families. The Minister is very strong on the issue of diversity, but in the referendum she is trying to change that. This particular one challenges that notion and I would qualify it by saying that not all family types have the same outputs in general for children. That is not to say that children cannot be raised well in the various diverse forms of family, but children are at a great risk within some more than others and all the socio-research shows that they perform best in the married family.
The British Journal of Education, Society & Behavioural Sciencecovered an interview survey by the National Health Service carried out between 1997 and 2013 and it makes various points about children raised in same-sex couples. I will not go into the detail of it other than to make this point which is worth noting. The study's author, and it names the author, assessed "the variety of different hypotheses about the differences, including comparative residential stability, experience of stigma or bullying, parental emotional problems ... and biological attachment. Each of these factors predictably aggravated children's emotional health but only the last of these - biological parentage - accounted for nearly all of the variation in emotional problems". By removing the biological and natural ties between the child and their mother and their father is highly dangerous. It will have serious adverse outcomes for many children, although not for all.
Why is the Minister doing this? Why are children's interests being relegated as subsidiary to that of adults? The Minister of all people, and not only in her role as Minister for Justice and Equality, should know the importance of this. I commended the fact that this was the first Government that installed a Minister for children and gave that ministry Cabinet status. Deputy Fitzgerald was that Minister and she, above all of us here, should know what is it in the best interests of children, yet she is now happy to abandon it for some ideology which does not stand up to scrutiny.
I hope that this will not be continued in a tedious way. I would make a few observations on the amendment. First, it is rather God-like. It is emitting some kind of God-like statement from a cloud. It states: "A child born as a result of a DAHR procedure shall have two parents." Biologically, of course, they do.
It is not. As I said, the amendment is rather God-like. Attempts were spoken of to restrict scientific practice and so on and all these amendments, which we were supposed to discuss together, have one thing in common - they seek to restrict. One of the contributors said that parent fathers are pursued through the courts for maintenance money and why are they not doing anything about the sperm donors, but it is a blob of sperm - get over it. I do not see that there is any particular reason for this.
The protection of children was invoked. Where were these people during the civil partnership debate when the rights of children were consistently violated by exclusion from that legislation? I spoke out about it. I did not hear any of these other people; not one of them spoke about it once, in fact they seemed quite pleased. A child born as a result of a DAHR procedure will have two parents, if it is a same-sex couple, a cohabiting, a married couple or whatever. The only time they will not is when a single parent is adopting and a single parent can do it already. They can do it already. It is a tiny number who are involved in these.
One can take a different view of the impact of legislation but it is disgraceful for a Member of this House to say that this Government and this legislation are anti-child. It is an outrageous claim to make that this Minister is anti-child and that the legislation is anti-child.There is no reason for this. That is what we are told, with a rictus of a smile, is respectful debate. I do not think there is anything respectful about accusing the Minister or the Government of being anti-child. That is the way in which language is controlled during the debate and it is very offensive and bullying. I do not like the tone and do not think it should be part of this debate.
The ruling of the Chair to the effect that nobody's name should be mentioned is ridiculous because to make a substantive point, one should be able to cite a source. Those reading the Official Report in the years to come will see these points being made without any substantiation. That is very poor practice.
I accept that making disparaging remarks about each other is out of order, but I ask the House to revisit that ruling. I was thinking about this Bill over the weekend. It covers six main areas of law and is significant legislation. For the first time in this country, it sets up a donor assisted human reproduction, DAHR, industry. This should have been provided for in a separate Bill. How can I vote for this Bill? I want to vote in favour of guardianship, custody and access of children and the extension of maintenance to children. I do not necessarily agree with everything being done in respect of donor assisted reproduction simply to facilitate an impending referendum. It is putting the cart before the horse. The issue of DAHR should have been addressed in a broad ranging Bill on assisted human reproduction. If we are genuinely interested in facilitating DAHR for married and cohabiting couples with infertility problems, why did we not do so earlier? Why have we waited until weeks before a referendum on same sex marriage?
Ideally for two parents. Everything we are doing is supposed to be in the best interests of the child. If we are acting in the best interests of the child, we will do our best to give him or her a mother and a father. That is in his or her best interests. I am not saying that is always practicable, but it is in the best interests of the child. It is not right to say biology does not matter. We all know about the joy and fun around likeness, image and comparing who one's son or daughter resembles. It includes shared habits, interests and throwbacks to previous generations. We are now robbing children of this. In my family I have not had that joy because I adopted my children. However, I have had it in my birth family, as well as my broader family. I fully accept that it would have been in the best interests of the children I adopted to have been raised by their birth parents. Adoption comes into the picture only when this is not possible. We are now deliberately creating the family through donation, but let us do so in the best interests of the child by preparing a stand-alone Bill. It is outrageous that we have lumped all of this in with the other areas I mentioned.
Senator Jim Walsh spoke about a young woman who had been reared by a same-sex couple. Her mother decided to be a lesbian when the child was at the age of two or three years and then the father left. She became a strong advocate of gay rights, but now that she has her own children she feels she was denied her father. The father obviously moved out of the household and disappeared, but the relationship did not facilitate her having a mother and a father.
I do not support the amendment. We have had a long process of pre-legislative scrutiny to get to this point. The Bill is very much based on children's rights. We are at last providing for a regulated framework, which means that children's rights will be extinguished if we do not bring forward this legislation. That is why I believe the Bill is centred on children's rights, including the right to an identity, the best interests of the child and continuity of care. I could continue, but I stated my position the other day. We know from research that security of belonging and knowing is essential for a child. That is what the research shows clearly and the legislation is a first step. I would like it to go further to vindicate and uphold children's rights, but I will not contribute to extinguishing them, which is what I think would be the effect of many of the amendments proposed.
I thank Senators for their contributions. I would like to return to the reality for between 400,000 and 500,000 children in Ireland today. The Government's commitment to the Child and Family Relationships Bill 2015 is in the context of demographic data which confirm that more children than ever are living in diverse family situations. It is important that we consider the reality of children's lives. With this Bill, we are legislating for the diverse family situations in which children find themselves. We are giving them and their parents stability within the scope of the law. This is the first time in legislation that a child's best interests have been spelled out clearly in terms of the various criteria that need to be taken into account when a decision is being made about children. There is no question of creating a new fertility industry. We are regulating an issue. As to why we should legislate for assisted human reproduction, AHR, and donor assisted human reproduction, DAHR, why not? In 2005 the commission on AHR stated this matter needed legislation. When drafting a Bill on parentage, child and family relationships and creating greater stability for diverse family types, one must address this issue. This is not about same-sex marriage. According to the statistics, most children born through DAHR are born to opposite-sex married couples. That will remain the case. Only a minority are born to same-sex couples. The parentage of all of these children is being resolved through the Bill. For example, the presumption of parentage for a husband is rebuttable. This is one of the issues we are addressing.
I will revert to the statistics, but I referred to the cultural change that was needed in terms of openness and the range of other issues related to this matter. The Bill is incredibly child centred. Under it, we must have clear rules on consent in DAHR and information, that is, children knowing their biological origins. We are creating a situation where clear information must be available. The position is unregulated and a child has no right to information on his or her biological inheritance. We are changing this and moving in a child-centred way from anonymous to identifiable donation. This is in the interests of the child having access to that information. The golden thread running through the legislation is child centred. It is not about parental rights but a child's parentage. That is clear from what I have have been saying.
We are only regulating one issue in respect of AHR. Clearly, broader legislation is required. Last week I outlined the range of issues involved. The Bill is the appropriate place in which to regulate the issue of parentage. It is the right thing to do for children who are born through DAHR. Such children are being born, but they do not have legal security in their families. We are dealing with that issue. The Government stated it would address the needs of children in these circumstances.
Regarding children in diverse family types, let us revert to some points made. There were 215,000 lone parent households in 2011, the latest year for which we have full statistics. There were 4,000 same-sex couples living together. Some 66% of the 115,000 divorced or separated women were living with their children. There were 49,000 households with cohabiting couples with children under 15 years of age. The number of children living in households headed by cohabiting couples increased by 41% between 2006 and 2011. Do we want to discriminate against these families if they want to have children using the technology of AHR and DAHR that is available to them?
In the Bill we are regulating and making it clear that, in circumstances of AHR, the child's best interests demand that we move from the current postion which is unregulated and where anonymous and some identifiable donations are being used to one in which that information will have to be available and there will be clear consent. The issue of consent is unregulated and we do not have information on donors. That we are moving away from this position means that it is child centred.
Let us consider the research. While there are different research findings, some of the most comprehensive longitudinal studies, for example, the European study of assisted reproduction families, an in-depth study of children aged six, 12 and 18 years, have found no differences in emotional or behavioural problems between donor-conceived children and those conceived naturally. That is what much of the research shows. A number of Senators stated the key factor was good parenting, not family type. Children do well in married families and with cohabiting couples.
The factor one considers when considering the best interests of the child is the quality of the parents and the relationship. One does not discriminate against or set up a hierarchy of family types.
One legislates to put the best interests of the child at the centre and, from a public policy perspective, provide as much stability for the different family types as possible. The Bill is only one aspect of supporting families. Undoubtedly, children in all family types need a range of supports. No one more than I will call and work for the development of family support services in order that children can have good parenting and, where there are difficulties, early intervention. That is necessary.
In terms of discrimination, the amendment potentially would deprive single women of the chance to fulfil a much desired wish to become mothers. Acceptance of the amendment would serve to restigmatise lone parents and suggest lone parenting was unacceptable. The country spent decades talking about doing away with references to "illegitimate" children. We fought hard to get rid of the discrimination that impacted on these children. Why would we use this legislation to start a new hierarchy of family types instead of dealing with children's diverse situations and doing the best for them in terms of stability in parenting and supporting parents? Where a woman gives birth to a child, under Irish law she is the mother. Marriage continues to be constitutionally protected. Nothing in this legislation will change that protection. Constitutional protection also remains for children in married families. The question in the referendum will be different, in that it will be about extending the right to marriage.
We are discussing the 300,000 people with fertility or subfertility problems. Some might choose to use AHR, while others might choose to use DAHR. We are debating how to regulate this issue in order that their children can have stability and the chance to be reared by loving parents. Some Senators have an opposition in principle to DAHR and are expressing their disagreement with it on the floor of the House. That is the position they have taken. The Department of Health is introducing comprehensive AHR legislation which will address a wide range of issues. In this Bill, however, we are addressing the parentage issues in Ireland which impact on children and their families.We are doing it in a way that is extremely child centred. The legislation has not been rushed and nor has it been delayed; rather, it is overdue. That is precisely what the Commission on Assisted Human Reproduction said in 2005. This is an area in respect of which regulation is needed.
The Minister seems to be of the view that if one states often enough and at length that something is child centred, then this will somehow make it so. I have been involved in debates on one other issue in this House in respect of which I was on the same side of the argument as people who support the Bill before us. I refer to the debates in respect of the legislation relating to human trafficking and the need to prosecute those who purchase sex.
One hears the same kind of argument in respect of the issue to which I refer, namely, that if we regulate the position, make everything legal and create an industry, this will somehow make it woman centred. We are starting to win the argument to the effect that it is not woman centred. When one regulates something, very often what one is doing is endorsing it and creating a demand in respect of it. That is why it does not matter how often the Minister refers to the hundreds of thousands of children living in non-traditional family situations. The legislation before the House is not about them except in the context of the aspects which relate to making provision for guardianship, a move which I and, I am sure, all other Members support. The legislation is not about the 90% of assisted human reproduction cases either. Rather, it is about all of the circumstances in which the Minister is contemplating certain children - upfront and in advance - of the right to be brought into the world by their own father and mother or, in any event, to have a father and mother.
It is all very well that the Minister continually states that everything involved is child centred. I am sorry but that is just more of the culture of spin that is bringing politics in general into disrepute. To some extent, it has also brought the Government into disrepute in the context of this issue. If the Minister's approach really were child centred, then it certainly still would have put in place the sections of this Bill which recognise the right of guardianship and other rights which operate to the benefit of children in various situations. However, she would be prohibiting the provision by clinics of donor-assisted human reproduction because this contemplates the deprivation of a child of his or her links with his or her father or mother or both. If one wanted to develop an item of child-centred legislation, one would regulate to support children who are already in the world and provide for their relationships with their parents. However, one would also make this country a cold house for those who would deprive other children of their rights in this regard. That is why I state that the Minister is engaging in spin.
The Minister also engages in spin when she uses language which indicates that she does not want to set up a hierarchy of family types, that she does not wish to re-stigmatise lone parents, etc. By implication, she is stating that this is what the implications under discussion would do.
What the Minister is failing to do is to acknowledge any of the best research which goes to show that there is a particular social benefit associated with children being brought up in marriage. I am in no way being judgmental in respect of other people in this regard. On many occasions I have referred to the heroism of long parents, in particular. We also acknowledge, however, that many such individuals require additional support and we should give it to them. The idea that lest one be portrayed as being judgmental, one should have nothing to say regarding the body of research which states that - all things being equal - it would be better if children were raised within marital families really speaks volumes about the culture of spin.
This is not about setting up a hierarchy of family types, it is about the State and society preferring particular situations and proposing this in the laws that are brought forward. It is also about the State regulating to prevent that which it can prevent, namely, an industry that brings children into the world in a way that deprives them of their father or mother or both. Where that situation cannot be prevented - and life gives rise to all sorts of situations - the State should move in to support the individual families involved. That to which I refer would give rise to a true child-centred balance and it would not lead to lone parents being re-stigmatised. Instead, it would lead to such parents being supported and it would also promote the right of every child, as far as is practicable, to have his or her own father and mother in his or her life.
I do not understand why the Minister felt it necessary to revisit the situation of hundreds of thousands of children. Nobody is placing their situations at issue. We are saying that, as would be the case with any other item of legislation, account should have been taken of what the research shows. Why is the Minister afraid or unwilling to do that? Why is it that, in the context of this issue alone, the Government is not interested in evaluating what the research shows? It has gone in the other direction and painted a dystopian picture of certain traditional married families by highlighting the obvious point - as if we did not all already realise it - that some of these families fail. There is no such thing as the perfect family and no one is claiming that such an entity exists. However, saying that does not give one the right to blind oneself to the reality that the research does tell us something about families. The Government has never acknowledged in the course of the debates on the legislation before us that there is something to be said for the family or for the father-and-mother relationship with children. I must reiterate the fact that it is anti-child to so willfully ignore the research to which I refer and to make no accommodation for it in the context of the framing of policy. I am opposed to those who pretend that if accommodation is made for it, then we are somehow stigmatising other people. That is sheer intellectual dishonesty and it is also socially reckless.
I thank the Minister for her patience. I will not delay her long in respect of this amendment, which suggests that the phrase "The intending parents of a donor-conceived child must undergo counselling prior to their initiation of DAHR." be inserted into the Bill. The decision relating to this matter is huge for those involved. As we have already discovered from today's debate, there are many aspects to DAHR which an intending couple might not have discussed in full before making their decision. We are of the view that quite a number of clinicians would agree with our opinion on this matter. It is essential that people should appreciate all of the ethical and legal elements before deciding to proceed with the initiation of DAHR. I hope the Minister might take the amendment on board.
This is one of those wider issues relating to assisted human reproduction which remains fully within the remit of the Minister for Health, Deputy Varadkar. As the Senator is aware, the Minister is advancing policy proposals in this area. Those proposals will address issues regarding who may access treatment. In the context of measuring long-term outcomes, counselling of individuals or couples considering or planning treatment clearly comes within the Minister for Health's area of policy responsibility. I indicated on Committee Stage that his proposals - which were recently approved by the Government - include requirements to the effect that people availing of all forms of assisted human reproduction, and not just donor-assisted fertility treatment, should undergo counselling in advance of treatment. The Bill the Minister for Health intends to bring forward is the appropriate mechanism under which to establish standards relating to counselling. It will also stipulate the type of counselling that will be offered and the qualifications those offering such counselling will need to possess. On Committee Stage, an interesting point was made to the effect that counselling should be offered by individuals who do not have an association with the clinics but I do not know quite how one would ensure that this would happen. All of these matters will be dealt with in the context of the legislation to which I refer.Already the Government has agreed on the proposals from the Minister for Health that counselling would have to be undertaken by everybody. In fact, as I informed the House last week, that is the situation at present - that there is counselling, but clearly what Senators want is that this would be on a statutory basis in legislation. I support that position and it will be dealt with in the broader assisted-human reproduction, AHR, legislation.
I move amendment No. 8:
The amendment seeks to require that a person would have attained at least the age of 21 years instead of 18 years before consenting to the use of his or her gamete. It is connected with amendment No. 9 which would require the certification that counselling has been received by the person in regard to the donation of his or her gametes.
In page 14, line 4, to delete "18 years" and substitute "21 years".
One of the real failures of the Bill is its lack of a holistic approach. Apart from the lack of care and respect for the rights of some of the children that will be affected by it, there is also the matter of behavioural issues to which the Minister referred. Apart from that, one must also consider the rights of young people who are willing at a stage of their lives when although they might have reached the age of majority they are not necessarily mentally or intellectually mature. I believe there is considerable evidence to show that young men in particular often do not mature until much later and their decision making reflects an immaturity of years. When it comes to something as fundamental as becoming a father or mother it seems to me that it does not get much more serious than that. A duty of care is required for such people. Assuming for a moment that what is proposed in the legislation goes ahead and that one contemplates donor-assisted human reproduction, as the Government certainly does, then one would have thought it a minimal requirement that there would be some kind of care or concern also for the people who donate their gametes, perhaps people who are immature or young people who are in need of money. Students are often prevailed upon in different countries to donate their gametes for small amounts of money. It seems to me that a more holistic view of the human person would require that would not happen without counselling and I do not think it should happen before the person is aged 21. I will return to the point on counselling in due course.
I have just a few observations to make. One can get married, go to war and vote at the age of 18. I do not see why one cannot become a parent. If, as Senator Mullen said, there are all kinds of indigent students wandering around who are prevailed upon for small amounts of money to provide those samples, that suggests, as I suggested earlier, that there is a fairly tendentious link between a sperm donor and the child. That seems to me to be pretty obvious. If one just donates sperm for a few bob because one is an impecunious student then I do not see that there should be such a close relationship. I do not agree with the amendment.
The point at issue is maturity. Senator Norris has mentioned more than once in this debate that it is a blob of sperm and we should get over it. Where the blob of sperm is put is what is important. The sperm has all the DNA to allow one to become a father. There is a fair bit of responsibility attached to that. One must give due deference to the young people who may be enticed to donate. In other countries there are advertisements such as "Your country needs you" and "Save the human race". Young people are made to feel that they are doing something brilliant. Let us at least allow them to become mature. I do not intend to say what age is the right age but 18 is very young. If being 21 makes a difference then we should look at increasing the age of consent to 21. As I indicated when we discussed the matter last week, on the other side of the coin the mother who would carry the donated embryo is expected to be 21. We should level the playing field.
The purpose of amendment No. 8 is to raise the minimum age of a donor to 21 years. It appears to be to match the minimum age of intending parents. However, the basis for setting different ages is not arbitrary. The age of 18 is set for a prospective donor on the grounds that he or she is of full age and has the capacity to consent both to any necessary medical treatment and to give full legal consent in relation to assignment of parentage. That said, I am advised by key stakeholders that it takes up to a year or more to recruit suitable donors given the clinical requirements for medical screening and counselling, and in the case of women the medical interventions required. For the most part, donors will be somewhat older than the minimum age established but I do not think it is necessary or appropriate to set a higher minimum age. By contrast, the age of 21 is set as a minimum for intending parents on the basis that the Department of Health advises it takes three years to arrive at a diagnosis of infertility, although I accept the points made by Senator Crown on, for example, some of the patients he has treated where it would have been obvious from a much earlier age that a person would be infertile. Thus, if an adult is seeking to become a parent at the earliest stage of adulthood, it will take at least three years to have a diagnosis of infertility which would indicate donor-assisted human reproduction. It is for that reason, not on the basis of presuming a greater level of physical or emotional maturity that 21 is set as the minimum age for intending parents. I cannot accept the amendment.
I move amendment No. 9:
In page 14, between lines 6 and 7, to insert the following:"(d) provides appropriate documentation certifying that they have received independent counselling on the implications of donating his or her gamete(s).".
- Sean Barrett
- Terry Brennan
- Colm Burke
- Thomas Byrne
- Eamonn Coghlan
- Martin Conway
- Gerard Craughwell
- Maurice Cummins
- Jim D'Arcy
- John Gilroy
- Aideen Hayden
- Imelda Henry
- Lorraine Higgins
- Caít Keane
- Denis Landy
- Marie Moloney
- Mary Moran
- Michael Mullins
- Hildegarde Naughton
- Catherine Noone
- David Norris
- Marie Louise O'Donnell
- Susan O'Keeffe
- Pat O'Neill
- Ned O'Sullivan
- Averil Power
- Tom Shehan
- Jillian van Turnhout
- John Whelan
- Mary White
- Diarmuid Wilson
- Katherine Zappone
I move amendment No. 11:
This is the amendment that relates to the interaction between the operator of a donation facility and a gamete donor whose gamete shall be used. The operator should inform the donor that instead of it being desirable that it keep updated information on the register, it would be mandatory to do so. This goes to the heart of the issue of how seriously the Government takes a child's rights in this scenario. Everywhere in the Bill we see regulations being made on clinics. The requirements are actually very weak. The sanctions are also either very weak or non-existent in the event of a failure. This is just another example; in this case, it is merely desirable, not mandatory, to keep updated information on the donor on the register. If we were to look at this issue through the lens of the child and his or her right to his or her identity, we would not be talking about it being desirable to keep updated information on the register on the person providing the gametes; rather, we would be talking about it being mandatory to do so and would be much more prescriptive in our approach to clinics.
In page 15, line 17, to delete “desirable” and substitute “mandatory”.
Fair enough; I second the amendment. I thought Senator Feargal Quinn was going to do so.
The Minister has consistently argued that the Bill has very much been constructed with the best interests of the child in mind. That is not credible, but this is a test for her which will prove that either I am wrong and she is right or that she is wrong and I am right. That it is desirable that we update the register means, in effect, that it is not in the best interests of the child, given that it will be at the discretion of the donor. If the Minister really wants the legislation to be in the best interests of the child - I have tabled an amendment on that matter - there is no doubt that it should be mandatory to update the register. It will be imperative for a child in the future to be aware of the position on, for example, the health of the donor. Any attempt to make it optional clearly illustrates that the Bill is all about adults rights and has very little to do with the best interests of the child, which I contend is the case. The Minister will either confirm or deny this in accepting or rejecting the amendment.
I do not think this amendment is practical; it is simply a matter of practical realities. This is to do with sperm donors and I do not believe all of them will keep the information updated. I have to deal with the Trinity register in terms of the election-----
-----and an enormous amount of the mail we send goes missing because the people have changed address or whatever else. It is desirable to update information, but I do not believe we can make it mandatory. That would be foolish. I do not see specified anywhere - this would be more helpful - the information that is to be kept on the register. Presumably, this will be done by regulations, but it would be helpful if the Minister indicated in general terms the information that is to be kept. This would also give us a better idea of whether it could be made mandatory. I do not believe it can, as I do not think it would be practical to do so.
If this was to be mandatory, we would have to enforce it. Unless it is included in legislation now, it could not be enforced. It will only be enforced where there is a hereditary illness. There is no doubt that this is the least best possible scenario for the child. We spoke about whether the Bill was child-centred or otherwise. Setting up a donor register is child-centred, but is it in the best interests of the child? It is not. Having a mother and a father is in the best interests of the child. Everything is relative. It may be desirable, but we are going on somebody's word. I am an adoptive parent. We met the birth mother in advance of placement. We were asked for certain reports during the lifetime of the child, which we have provided, but it was based on someone's word. It was not based on law and it was not based on something being mandatory. People will differ, but if we were to opt to make it mandatory, we would have to enforce it. If it was not adhered to, what would we do then? However, the hereditary illness aspect is very important. If a donor discovers, after a donation has been made, that there is a hereditary illness in his genetic family that may have been pass on to the child, how will this information be discovered? It could be a matter of life or death.
Amendment No. 11 would require a donor to update his or her contact details on an ongoing basis. However, there is no clear method to enforce this, the point made by Senator David Norris, and no sanction if the donor fails to do so. If, as part of the donor information to be provided, we provide that it is mandatory to update details and the donor fails to do so, it could mean that his or her consent is not wholly compliant with section 6.Thus, for reasons entirely outside the control of the intending parents of the child, the donor's failure to update his or her contact details could be interpreted as meaning the donor's consent was void or uncertain and, therefore, could affect the legal parentage of the child. That would be a perverse and completely unacceptable result and would be seriously prejudicial, I believe, to the best interests of the child concerned.
The approach I am taking is in the best interests of the child concerned. At present, we know it is easier to trace people on the level of information which is now going to be required - the name, date of birth, address at time of donation and nationality. That information will have to be provided whether donation is made in Ireland or in another jurisdiction because the donation will not be acceptable in Ireland if that information is not made available in the other jurisdiction. The reason I made the provision is that I believe it is desirable that a donor update his or her information but I cannot see a justification for making it mandatory nor any way to enforce such a requirement.
Section 24(3) outlines the details of the information that needs to be given and provisions to enable updating of donor information on the register will be made by the Department of Health, under regulation. If a donor has given consent and one has the name and they have been informed of all the issues in relation to parentage, as provided for in the Bill, then it is far more likely that the information Senator Fidelma Healy Eames is speaking about would be made available. In the first instance we are moving from a situation where no information is available at present to many children, whereas now because of the consents and the identifiable donation, all of that information is available, unlike the current situation which is unregulated.
It is ironic that the Minister should use the word "perverse" in terms of identifying the potential consequences because, of course, what is perverse running all through this is the complete lack of regard for the child's rights in the whole story. Clearly the intent of the Bill is to place the minimum imposition on Lars from Denmark or whoever it is that may provide the donor gamete or, indeed, on the clinics as well. When bad legislation is brought forward one can find oneself in a situation where the best one can do is specify that certain things shall be desirable. This is because one has strayed so far from the child's best interests in what is being provided for that it is not surprising that one is tying oneself into knots. That is exactly what this legislation does, it ties reality into knots and it creates situations where it is nearly impossible to vindicate the best interests of the child. I agree with the Minister that it would be very difficult to police making such information mandatory. I have no doubt the consequences stated by the Minister says would follow but all of that is simply to illustrate how wrong is the approach being adopted in the first place. I remind the Minister that it is within her power to legislate against the possibility of donor assisted human reproduction, precisely because of the incursion into children's rights that it contemplates.
I move amendment No. 24:
This amendment was discussed on Committee Stage. In the event of legal costs I suggested to the Minister there was no need for the word "any". Perhaps the Minister would share with us again her intriguing reason there was no need for the word "any" before travel costs and medical expenses but there was a need for it before legal or counselling costs.
In page 23, line 30, to delete "any".
The Senator will probably accuse me of saying the same thing again but he asks the same question. The amendment would remove the word "any" from any legal or counselling expenses. This has already been discussed on Committee Stage as the Senator said. I explained then that the amendment would alter the nuanced meaning of the phrase which is intended to convey that in certain circumstances legal and counselling expenses may not arise, such as where the donors have already had counselling because they have themselves been undertaking assisted human reproduction. I have nothing further to add to that explanation.
I move amendment No. 26:
These amendments are grouped and are designed to allow the courts to assign parentage in cases where somebody was conceived through AHR prior to enactment of the Bill, inside or outside the State. As I pointed out on Second Stage, the current situation is not satisfactory. Following implementation of the Bill, children conceived in Irish fertility clinics with the assistance of donor sperm will automatically have their intentional parents legally recognised. Children conceived in foreign fertility clinics, or in Irish clinics prior to the enactment of the Bill, with the assistance of donor sperm will have the opportunity for a court to have their intentional parents legally recognised but only if the identity of the donor is unknown to the intentional parents, so not if known sperm was used. Those conceived in the past with known sperm, even where the donor stated categorically and had an arrangement with the intending parents that the individual was just donating and had no intention of being a parent, are not covered by the Bill.
In page 23, to delete all words from and including "that- " in line 37 down to and including line 38, and in page 24, to delete lines 1 to 3 and substitute the following:"whether the procedure was performed inside or outside the State,".
Children conceived with known sperm whether in a clinic or outside a clinic are completely excluded from any opportunity to have their intentional parents legally recognised. There is not even a provision for the courts to decide what is in the child's best interest. That is unsatisfactory. The courts should be able to decide parentage in such cases where it can clearly establish the intention of all the parties. It should be able to decide what is in the child's best interests, particularly if everybody agrees. I do not understand the logic where the parties are prepared to present themselves in court and the donor is prepared to tell the court that they never had any intention of acting in a parental role, that they would have been prepared to sign all the necessary consents if this Bill had been in place and that they wish the child to have the opportunity to have their actual parents recognised.
Where everybody is in agreement and is prepared to testify to that fact to the court, it seems bizarre that the court cannot assign parentage in those circumstances. I accept it is more difficult if there is a dispute, yet the courts are capable of deciding on family law disputes and on complicated cases all the time. I cannot understand the logic behind excluding any role for a court where there is agreement by all those concerned. I accept that going forward the Minister wants to be able to restrict the circumstances in which AHR and DAHR take place. I agree with the logic behind that and, obviously, that is the reason for the disincentive, if people want to go outside those arrangements they will have greater difficulty in having parentage arrangements recognised if they do not abide by the procedures set out in the Bill.I agree with that but so many children have already been born through DAHR that there should be a facility in such cases for prior parentage to be recognised without having to go down other routes such as adoption. The procedure in the Bill for deciding on parentage in cases of unknown donors prior to the Bill could easily be extended to known donor situations. It would be in the best interest of the child to have clarity in these situations so I urge the Minister to accept these amendments.
I am very happy to second the amendment. This is a significant amendment as there is a gap in the provisions as they stand. I spoke about this previously and have received correspondence from parents who are either in this situation or expect to be in this situation. The courts should have the right to assign parentage in this small number of cases. One mother who is expecting to find herself in this situation told me that the golden thread that existed in all other cases was missing in hers and this was a cause of grief to her. I am happy to support the amendment.
Senator Norris referred to a "golden thread" and that is a very good term to describe the natural and biological link between a child and its actual parent. It is something which should inform the whole of this Bill but, unfortunately, the Minister has decided to go in the contrary direction and treat it as if it is totally insignificant. The points made by Senator Power are correct. We held debates in this House many years ago about children who were adopted and there was consensus on all sides. I think the Minister shares our views that every effort should be made to assist adopted children to make the link to their natural parents. I support the amendment.
I fully support the non-anonymity provisions but worry that they could lead to the unintended consequence of people preferring to go abroad. I can see all the difficulties of policing that and I know some provisions will make it more difficult on the parenting side but I ask the Minister for Justice and Equality if the law could be applied in such a way as to make it illegal for people to go abroad and accept anonymous donations, while allowing non-anonymous donations. I would like to explore this because otherwise there will be a huge disparity between those who get their donor assisted procedure here and those who go abroad but come back to give birth in this country. People are very mobile nowadays but we could have arrangements with other countries to enforce such a provision in our legislation. I suggest this purely in the interest of the child's right to access the identity of its natural parent. We touched on the subject on Committee Stage but we did not receive a satisfactory answer from the Minister.
On another point, the Institute of Obstetricians and Gynaecologists and some psychiatric groups have raised concerns that children who get information about their natural parents at 18 or above may suffer a traumatic effect and may be better getting it earlier. I do not put myself forward as an expert in this area but the arguments these people have put forward are plausible. A case has been made in this context for anonymity, which I do not support, but it is imperative we get the legislation right. I am afraid that those children who cannot access information because people have gone abroad for anonymous donations or because it is not available until the age of 18 will feel traumatised and suffer challenges from the point of view of their identity. If children are too young they will not be able to absorb the information so the best method is for parents to gradually prepare children over the years by giving them the information they can absorb at the appropriate stages. I would like to hear the Minister's comments on those points.
Are we trying to establish the identity of a donor who would have made a donation on the basis of remaining anonymous? If so, can we legally do this? Can we legally enforce something where anonymity was part of the terms of the contract at the point of handover? It is important that every donor knows the power and the potential of what they are doing but I do not think a person who makes an anonymous donation of sperm or gametes is thinking of being a parent. They are not, yet the donation leads to a child so there is a huge responsibility in the donation process.
Can we enforce our rules in other countries who do not have similar rules? Can we do something through the EU? Can we request the information on file in a clinic which facilitated the donation where the donor at the time did not wish to be identified and only made it on the basis that it would be anonymous?
I do not know much about this but do we know the motivation of people to donate anonymously?
The purpose of this group of amendments appears to be to expand the effect of the retrospective provisions allowing assignment of parentage in relation to pre-commencement donor assisted human reproduction procedures. For clarity, I want to address this issue in detail and to set out the provisions that currently apply because this is a very important issue. The parentage of a child born through donor assisted human reproduction can be assigned in the Bill under section 21 or section 22 where the following conditions are met: the child was born in the State; the donor assisted human reproduction procedure took place in the State; or, if it took place outside the State, the person or the facility which carried out the procedure held any necessary licence or authorisation required under the laws of that state to do so. I stress that this is about retrospective assignment of parentage and does not relate to the regulations that will be in place going forward as a result of this legislation.
The next criterion is that the person who is to be declared a parent was an intending parent at the time the procedure took place and the donor was not, and is not, known to the intending parents.I will go into detail on why that is the case; there is a very good legal reason. At first glance, one might question it on the grounds that it seems strange and that the donor could only be unknown. The reason for setting out these conditions is that I am clearly advised that parentage cannot be assigned if a procedure was not carried out in accordance with any law applicable in another jurisdiction or if a person can clearly and legally be identified as the parent of the child concerned. This is why my provision also stipulates that the donor must have been and remain unknown to the intending parents. Our existing legal framework does not recognise sperm donation and, therefore, if the sperm donor's identity is known he is legally considered to be the father. There is already Supreme Court case law on this point, and this is why it is not possible to provide retrospective recognition where the donor's identity is known. However, where the donor's identity is known and all the adults concerned are in agreement, the intending parents still have a route to parentage, by means of adoption. Senator Power commented on that. Adoption is an option if the proposed adoption is in the best interest of the child and all the conditions one would expect to be met, in terms of adoption assessment etc. are met.
Let me turn to the amendments proposed. Amendment No. 26 amends section 20 to specify that it applies to whether the DAHR procedure takes place in the State. It removes the requirement that the person carrying out the procedure must hold any necessary authorisation to do so.
Amendment No. 29 provides a much more extensive definition of the DAHR procedure, which would presumably include self-insemination in addition to a range of ancillary procedures. This would allow assignment of parentage in circumstances where a person undertakes procedures outside the jurisdiction that could be illegal in that jurisdiction. That is seriously problematic. My provisions will allow assignment of parentage if the procedure concerned takes place in Ireland. If it takes place elsewhere, the person who carries it out must hold any necessary authorisation.
With regard to the assignment of parentage, amendments Nos. 27 and 28 remove the stipulation that the donor be unknown to the intended parents both at the time of the procedure and at the time of an application under sections 21 or 22. I have already touched on why this cannot be accepted. Legally, there is a very strong case. Under the current law, where the donor is known he or she is regarded as the parent of the child. This amendment is asking me to remove that individual as the parent of the child retrospectively. He or she cannot alter the child's parentage with retrospective effect by transferring that parentage through a process other than adoption. Adoption is the only process whereby that can happen.
Our provisions concerning the prospective assignment of parentage under section 5 have been specifically framed to require the donor to consent clearly in advance of the donation. The critical point concerns the donor not becoming the parent of the child. Senator Healy Eames raised a number of points on this. The consent is necessary before donation in order that the parentage provisions in the legislation can be fulfilled. In our provisions, if the person does not so consent, he or she will be regarded as a parent rather than as a donor. That is why counselling is so important. These points were raised. The donor must fully understand the position. Currently, this area is completely unregulated. There is no counselling or discussion of the implications of the donation. Now that we are to have regulation in this completely unregulated area, we want the donor to be aware of the consequences for him in regard to parentage.
I have considered very carefully the provisions allowing retrospective assignment of parentage. They are very carefully balanced, on specific legal advice, to ensure the rights and responsibilities of natural parentage cannot be removed arbitrarily. These amendments would arbitrarily remove parentage retrospectively. One could imagine the insurmountable practical and constitutional difficulties of doing that. Where the parents of a child are clearly identifiable individuals, the retrospective provisions cannot be used. The only path to parentage for the intending parents in those circumstances is adoption. However, with the new consents, the move from anonymous to identifiable donation, the parentage provisions, counselling and a full discussion of the implications of what people are doing, parentage can be assigned. This is because one is building in legally all the criteria that need to be met. They are strong criteria in the interest of the child. One cannot remove the parentage retrospectively.
Senators will accept the constitutional reasons one cannot retrospectively remove parentage. With regard to future regulation, we are laying out very clearly the procedures that need to be followed. One should remember that this area is completely unregulated. Internationally, the move is increasingly towards the kinds of approaches we have taken in this legislation. The section in the Department of Health dealing with this matter is the bioethics section. It has examined very carefully international evidence. Anything I am doing in this legislation is in line with the policy that has been adopted by the Department of Health and that has been supported by the Government through the heads of the broader AHR legislation that is to be developed. I hope that is helpful in explaining why I cannot accept the amendments. I understand the circumstances Senator Power is trying to deal with but it is legally and constitutionally impossible to go in this direction retrospectively.
It is important to be clear that we are talking only about situations that arose prior to the enactment of this legislation. The Minister referred to the possibility of recognising procedures that were legal, such as self-insemination, but the reality is that such practices did occur in the past. Such circumstances arose where same-sex couples, for example, were prohibited from availing of assisted human reproduction services in clinics in Ireland and consequently made other arrangements. We must recognise the reality, irrespective of how a child came into the world. The rest of this Bill is based on that premise.
I appreciate that the Minister does not want to encourage the specified practices in the future. I support that but we must do our best for the children conceived in the past through DAHR. Irrespective of how they were conceived, we must try to provide certainty and supports to them. It is from this point of view that these amendments were drafted.
The Minister said one cannot retrospectively remove parentage. The word "parentage" is inappropriate where a donor is prepared to testify in court that he never intended to be a parent, that he does not now intend to be a parent, and that he has never had any parental relationship whatsoever with the donor-conceived child. It is inappropriate where the child's actual parents, who might have been parenting the child or young person for many years before the issue came before court, are prepared to testify to their parental relationship with the child. To apply the word "parentage" and assign the associated role to the donor is inappropriate in these circumstances. It is important to point out that a donor of sperm, for example, has no constitutional rights, any more than an unmarried father has constitutional rights in Ireland. The courts have made it very clear that a sperm donor is treated in law as being akin to an unmarried father and, as such, has no rights. Therefore, I do not accept it is a constitutional issue. I accept there is a legislative issue but that the legislative position could be changed by alternative legislation, such as the amendments we are tabling here today.
This is an important issue. The provisions are unfair to children who were conceived through assisted human reproduction using anonymously donated sperm.The rest of the Bill discourages anonymous donations and argues as to why they are wrong. However, the children who are going to be assisted by the legislation are those who are conceived using anonymous donations. For those born to known donors, nothing will be done in terms of parentage. I accept adoption is an option but it is a more complex option and I do not accept it is necessary.
I appreciate the Minister has examined the issue and has come up with an alternative approach but that approach is flawed. I do not accept that it is constitutionally necessary for the reasons I have already set out. The most important thing is what is in the best interests of the child. These provisions would only apply where everyone is prepared to go into court and attest to the fact that there is a clear arrangement as to who was and who was not to be a parent. The courts are best placed to make a determination on the best interests of the child in those circumstances.
The Senator will see that these are basic constitutional points on who is considered to be the parent of the child. There is Supreme Court case law on the issue. The McD v.L. case makes it very clear that in a self-insemination situation, the man is legally the father. It is not possible to change the case law and there is very strong legal advice on this point.
I do not wish to interrupt but the Supreme Court was also very clear in that case that the father had no constitutional rights. It does not recognise under Irish law a de factofamily in respect of the donor. The donor had no constitutional rights.
However, the man was deemed to be, legally, the father. There is very strong legal advice on the point and that adoption is the pathway to parentage in these circumstances. I am conscious of the situation of families with donor-conceived children pre-commencement. I received many representations from Senators and Deputies on this issue. I examined it intensively and I did want to stretch the limits of how far we could go on this issue. The provisions for retrospective assignment represent the limits of what can be done given the strong legal advice I have received. I got intensive legal advice on this issue. These are people's personal situations. People wrote to me about their situations and they did want to have parentage assigned retrospectively. However, it is only in the circumstances I have outlined that this can be done. For other couples, the pathway to parentage will be adoption. I understand the spirit in which the Senator is putting forward this amendment, but I have legal advice that states that constitutionally one cannot take away parentage in these circumstances.
I move amendment No. 34:
This amendment relates to the acquisition of gametes or embryos by the operator of a DAHR facility. The section will require them when acquiring donor gametes to acquire the information specified in subsection (3) in respect of the donor. This subsection currently prescribes the name, date of birth, nationality, contact details and the date on which the gamete was provided. My amendment would provide for the requirement that knowledge with regard to any inheritable diseases and-or conditions which are part of the medical history of the donor would also be subject to acquisition at that time.
In page 27, between lines 23 and 24, to insert the following:“(f) any inheritable diseases and/or conditions which are part of his or her medical history.”.
I second the amendment. It seems to me that this is a very valuable source of information about inheritable diseases and genetic information. This information is much more valuable than the donor's current address and telephone number and so forth. This has a direct medical impact on the child and it is information which should be made available. I strongly support the inclusion of information on inheritable diseases and genetic conditions and so on. This is precisely the kind of information which is valuable to have and I commend Senator Mullen for the amendment.
I discussed this matter on Committee Stage. I will go back to the point I made then. The scope of the Bill is to vindicate the right of the child to his or her identity in order to underpin the assignment of parentage under section 5. I considered including medical information initially and going into all the detail. However, in discussions with the Department of Health, given the complexity of the area and given that it concerns medical information, I made the decision that it was more appropriately dealt with by that Department. Pending the development of the broader AHR Bill, I can assure the Seanad that the level of screening of donors is clinically robust, particularly from the perspective of genetic risks. I am informed that the risk of genetic disorder to children who are conceived by AHR and DAHR is much lower because there is such screening at present. Comprehensive medical histories are taken from prospective donors and their donations are screened. Donors who have genetic conditions which would pose a risk to a child are not accepted. The level of screening including screening for genetic conditions is robust so as to give good guarantees to the intending parents and to give the maximum protection to the child to be born through the donations.
I understand why Senators are suggesting this amendment but I believe it should be dealt with in the broader AHR legislation. This issue would be more appropriately worked on and developed in that legislation. This position arises from my discussions with the Department of Health.
I move amendment No. 36:
This section would appear to preclude what could be termed the DIY donor-assisted human reproduction practice which currently occurs. The Minister has addressed much of this in her explanations on previous amendments. What provision will be made for these people? It is my understanding that in the first draft of the Children and Family Relationships Bill, all donor-conceived children would automatically have had their intentional parents recognised as their legal parents. In the event of any dispute, there would be an opportunity for this to be reviewed by the court and decided in the child's best interests. This has been substantially altered in Part 2 of the Bill as finally drafted and there is therefore a very unequal treatment of donor-conceived children in the Bill.
In page 27, lines 25 to 27, to delete all words from and including “(1) A” in line 25 down to and including line 27.
On Second Stage, I raised a particular case which has come across my desk with the Minister. The case has probably come across the Minister's desk as well. The case involves a couple where the man discovered he was infertile. They got a donation of sperm from a friend and woman self-inseminated. They have a beautiful child who is now a couple of months old. They are concerned that their case will not be covered by this legislation. It is my understanding from what the Minister said to Senator Power that adoption will be the only route open to them. They had the full consent of the friend. In her speech on Second Stage, the Minister said that a donation from a friend was specifically excluded.Perhaps the Minister might clarify the reason.
The case made by Senator Trevor Ó Clochartaigh is interesting. The Minister will recall that I raised the issue of intra-family and inter-generational donations last week. It is a little different because it involved a friend. The Minister's response was that we would need another Bill to deal with that issue. She did not mention adoption to me and I wonder if there is a difference.
I understand from where Senator Trevor Ó Clochartaigh is coming, but I also have an understanding of the Minister's position which, I presume, is that she wants to regulate to ensure it is done properly and in accordance with best medical guidelines. I am interested in hearing what she has to say because I am divided in my mind, although I was happy to second the amendment in order that it could be discussed.
This amendment would remove the requirement for a donor-assisted human reproduction procedure to be carried out only by a registered medical practitioner or a registered nurse. The aim appears to be that the parentage of a child born through a non-clinical procedure such as self-insemination would be recognised under the provisions of the Bill. As I have explained, the provisions of the Bill have been carefully designed to allow the assignment of parentage in limited and specified circumstances. A requirement that the treatment take place in a clinical context is an important element of the safeguards included. If wider provision were made for the assignment of parentage, other than on the basis of genetic connection, this could have significant consequences for the position of natural fathers.
There are several difficulties with the proposal, even if consents can be taken in broadly the same way as is envisaged in sections 6, 9 and 11 of the Bill. In particular, it would not be possible to have independent verification that the child was born through a donor-assisted human reproduction procedure and it would, therefore, not be possible to provide the necessary certificate under section 27(5). That certificate is essential to enable a couple to jointly register as the parents of a donor-conceived child. There would also be a significant difficulty in ensuring the safeguards allowing revocation of consent by a donor could be properly implemented.
Earlier I mentioned the case law on the position of a donor in cases of self-insemination was to be found in the Supreme Court judgment in the case of McD v. L. It found that the man concerned was in law the child's father and had the same statutory rights to seek guardianship, custody and access as another non-marital father. The Bill does not attempt to regulate or ban self-insemination; it simply does not allow parentage to be assigned, as set out in section 5. However, where all of the adults involved are in agreement and it is in the best interests of the child concerned, there are options available which would allow a "non-biological parent" to secure a legal relationship with the child. That person could apply for guardianship of the child under section 6C of the Guardianship of Infants Act 1964, as inserted by section 45 of the Bill, leaving the parental status of the natural father unaffected. Alternatively, as I stated, the mother and her partner could jointly adopt the child under the Adoption Act 2010, as it is proposed to be amended by the Bill. In short, they will have a route to parentage which does not run the risk of undermining the position of natural fathers in these circumstances.
For all of these reasons, I cannot support the amendment.
I move amendment No. 37:
As we have addressed the core issues, I do not need to say much about this amendment. On Committee Stage I drew the Minister's attention to the laws of various countries which were more restrictive on donor-assisted human reproduction. Obviously, she knows my position that a child's rights are not vindicated once donor-assisted human reproduction is involved. I would be interested in hearing what consideration was given to the law in countries such as Germany, Austria and Italy which is more restrictive on donor-assisted human reproduction and requires the procedure to be restricted to either a married male-female couple or a male-female couple in a committed relationshp and why the Minister thinks these countries have these laws.
In page 27, to delete lines 28 to 35, and in page 28, to delete lines 1 to 16 and substitute the following:"(2) A person shall not perform a DAHR procedure other than on the request of intending parents who are legally married to one another.
(3) A person shall not perform a DAHR procedure on the request of the intending parents unless—(a) he or she has first obtained the following information in respect of the intending parents—(i) his and her name,(b) (i) the intending mother has consented under section 9to the parentage under section 5of a child born as a result of the procedure, and her declaration under section 9(1)(c)includes a statement referred to in section 9(3)(d)in respect of the husband, and
(ii) his and her date of birth, and
(iii) his and her address and contact details,
and(ii) the husband has consented under section 11to being the parent, under section 5, of a child born as a result of the
I will express surprise. I am not sure it is against the Standing Orders of the House, but there are two amendments which are alternatives which have been tabled by the same Senators. That seems daft. One should have one or the other. I do not see how one can have half a dozen. I would be interested in having a ruling on that issue. How many amendments can one have on the same issue and in the names of the same two Senators?
This amendment would remove single persons, same-sex couples and cohabiting couples. It would be a dreadful intrusion into people's private lives. I do not understand why someone would want to poke his or her nose into other people's private lives in this way. It is odd. I am not in the slightest interested in other people's private lives, except in so far as it relates to the law. I do not understand why Senator Rónán Mullen wants to restrict the procedure because of a piece of paper. These are human beings and if they want to have children, the Senator wants to force them to get married. That is the insane argument that came about with Mr. Justice O'Higgins and a few of his confreresin the case I took in which they stated the criminalisation of homosexuality was necessary in order to force ditherers into the heterosexual camp. I do not think it works like that. I do not think all of the judges who signed it did either because one of them, within a month or two, gave a decision in a nullity case that, because one of the participants was gay, it was not a marriage. I do not understand this narrowness. It will not succeed.
I assure Senator David Norris that I have no interest in poking my nose into other people's lives. What two men do in their own house or, for that matter, two women or a man and a woman is of no concern of mine and I do not believe it should be. The reason I support this amendment - I take it that "legally married" means marriage as we understand it, not what it might be following the referendum - is I am interested in ensuring the best interests of a child are preserved by having a father and a mother. There is a plethora of social research in this area, none of which was conducted in this country and all of which clearly illustrates that children do better in general in a range of areas, some of which surprised me, with a married couple than in all other diverse family types. That does not mean, however, that there are no other types of family in which children are quite happy and getting on well.We must operate on the basis of where there is the least risk to a child in a range of areas, including education. In that regard, all of the risks to which children are exposed are better dealt with if their parents are married. It is for this reason that I support the amendment. I have continually outlined my views on this matter for a decade or perhaps longer and do not believe I need to labour the point further.
The amendment would ensure only married couples could jointly be the parents of a child born through donor-assisted human reproduction. It would specifically exclude cohabiting couples or civil partners from joint legal parentage of a child. This would go much further than establishing a hierarchy of family types because it would set out that the only family we would be prepared to recognise in respect of donor-conceived children was the constitutionally-recognised marital family. That would run utterly against the spirit of the Bill, which is intended to protect and support a range of family types and their children.
Yes, but ECHR law in this area is evolving and many countries are reviewing their legislation. Some of the legislation to which Senators have referred was put in place quite some time ago.
The amendment is problematic in terms of public policy and would have serious implications regarding the European Convention on Human Rights in that it would completely fail to recognise the right of non-marital couples to a private and family life. While Ccnvention jurisprudence in the area of assisted reproduction remains limited, it is likely that providing access to donor-assisted reproduction and legal assignment of parentage only to marital couples could be challenged. The evidence available does not support a contention that only a married couple can provide for the welfare and best interests of a child born through donor-assisted human reproduction.
It is very interesting that the Minister made reference to the constitutionally recognised marital family and proceeded to state the amendment went completely against the spirit of the legislation. It does go against the spirit of the legislation because the latter is all wrong from the point of view of respecting children's rights. I wonder, however, whether it goes against the spirit of the Constitution which recognises the family based on marriage.
The Minister referred to the amendment being problematic in terms of public policy. To what public policy is she referring? Is it the Government's agenda to denigrate the special relationship between a father and a mother and their child? The Minister referred to her concern about the possible clash between the amendment - were it to be taken on board and included in the legislation - and the jurisprudence of the European Court of Human Rights. She had nothing to say, however, about the spirit of the Constitution, as it stands. That sticks out a mile. There is a willingness to consider international trends of law when it suits us, but there is no willingness to take account of what might be required in terms of either the letter or the spirit of the Constitution. Nor is there a willingness to put any flesh on those words contained in the Constitution to the effect that "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". In the context of the legislation before us, it is difficult to imagine what the Minister thinks these words mean.
Senator Jim Walsh is right to insist that there is a body of evidence which vindicates the view that there is a special validity and complementarity to what mothers and fathers can bring to their children's lives. None of this is to denigrate all of the love, care and concern for best interests in families, regardless of how they are constituted. Nobody has ever denigrated this. However, we refuse to accept the Minister's one-size-fits-all approach. Perhaps it might be more accurately characterised as an "every-size-fits-one" approach. It is she who is willfully blind to the body of evidence which states fathers and mothers each bring something distinct to parenting. My amendment seeks to underline that point. It is regrettable that, in the context of the means by which we are going to allow donor-assisted human reproduction to be legal and will facilitate clinics which provide it, two core requirements were not insisted on in order to minimise the incursion into children's rights. These requirements are, of course, that - in the light of what the evidence shows - there be a father and a mother in all instances and that they be married to each other. The Minister has indicated that the position is evolving. What she is referring to in that regard is an evolving position in the context of policy and law rather than what constitutes best practice.
The Bill will have no impact on the marital family. The existing protections will remain in place. The legislation is about addressing the needs of other families. On public policy and since the coming into force of the Status of Children Act 1987, we do not discriminate against children on the basis of their parents' marital status. That is the reality. Reference was made to the Government's agenda-----
The Senator referred to an agenda, but I am discussing public policy. The public policy approach is to continue that which is encapsulated in the Status of Children Act 1987, whereby we do not discriminate against children on the basis of different family types.
Our legislation supports the children of married families by promoting, in the context of marriage breakdown, their right to have a meaningful relationship with both parents.
I wish to highlight some of the points about the rights of families and couples. As determined by the European Court of Human Rights under Article 8 of the European Convention on Human Rights, non-marital couples have a right to a family life. The decision reached in the case of Schalk and Kopf v. Austria on 24 June 2010 demonstrates - this was reaffirmed in PB and JS v. Austria on 22 July 2010 and in another case - that couples in non-marital relationships, both with and without children, are entitled to protection of their right to a family life under Article 8 of the convention. Any legislation that has been or is to be enacted must be interpreted in the light of the convention. It should also be noted that under Article 8 of the European Convention on Human Rights, a child has a right to have his or her family relationships recognised. The absence of an appropriate mechanism for affiliation was found to breach a child's rights under Article 8 in the case of Marckx v. Belgium in June 1979. The principle I have outlined in this regard is applicable to children in cases of assisted reproduction. Last year the refusal of the French state to recognise the relationship between a parent and a child in two instances of AHR was considered to violate the children's right to a family life under Article 8. In particular, the European Court of Human Rights noted that the children were in a state of legal uncertainty and that it was unclear whether they would be able to obtain recognition of their French nationality. This was held to undermine the children's right to an identity within French society and to contravene the margin of appreciation enjoyed by the state in cases of AHR.
I move amendment No. 39:
I will not detain the House long because we discussed the matter to which this amendment relates on Committee Stage. The amendment has been designed to introduce into law a provision similar to that which has been put in place in Britain. Again, we are facing into a brave new world scenario in the context of multiplex parenting and the various techniques employed in assisted human reproduction. In many instances, the desire of adults is to produce a child entirely from their own gametes, if possible, even in circumstances where it is not male-female parenting that is contemplated.We really do not know where all of this is going. There certainly seems to be a mentality in the western world that if it can be done, it may be done. This Government is proceeding quite rapidly down that road in this area also, with minimal regulation and disregard of what was traditionally understood to be the rights of children. I would have thought that given the uncertainty about what the future holds, in terms of technology, and the vested interests involved, from the point of view of those who provide assisted human reproduction services, they should be required in law at the very least "to take account". I realise those words are not massively prescriptive or demanding but the principle should be enshrined in law that they would be required to take account of the welfare and best interests of any child who may be born as a result of such procedures.
In page 28, between lines 16 and 17, to insert the following:“(4) A person shall not perform a DAHR procedure unless account has been taken of the welfare and best interests of any child who may be born as a result of the treatment.”.
I second the amendment. It is a straightforward and self-evident amendment because all it requires is that the people carrying out the procedure would have to take into account what they regard as the welfare and the best interests of any child. If that is not the case, there are other interests they will take into account and the child's interests is not factored into this at all, despite everything the Minister said. It is a minor but significant amendment from the point of view of placing some onus on the facilities to have regard to the well-being of the child, subsequent to the procedure and the birth of the child. I will be interested to hear the Minister's views. If she is not accepting the amendment, maybe she will outline the reasons.
I have gone into detail on this before and I will not repeat it. The proper place for the best interests assessment for access to treatment is in the forthcoming AHR legislation.
I move amendment No. 41:
I presume the answer to the last amendment will probably be the answer to this one, which is kicking it for a touch. If introducing legislation, I do not understand why amendments which are very pertinent to its operation and to the procedures are not taken into account. That, in its own way, creates a risk. In this instance, the Minister indicated on Committee Stage that the Government has already agreed to limits on the number of children who can be conceived as a consequence of a particular donor. While a hard and fast decision has not been made on the actual limit, I believe a figure of three is reasonable. From what the Minister said the last day, I do not believe she would regard that as being unreasonable.
In page 28, between lines 26 and 27, to insert the following:“(c) the operator of a DAHR facility is certain that the use of the gamete would not exceed the limit on the number of children who may be born as a result of donor gametes from one individual donor. That limit should be a maximum of three births per individual donor.”.
We can defer all of these things because they may not have a bearing on 22 May but they have a bearing on any children conceived between now and whenever the next substantive Bill is introduced. Who knows when that will happen. The Minister indicated on Committee Stage that it may happen at the end of this year but there may be a different Government and it may or may not decide to proceed with it. We are in a state of fluidity politically and I do not believe there can be guarantees. However, by bringing in this legislation and by not confining it, the Minister is putting on the Statute Book that any number of siblings can be produced because there is no limit on that in respect of the donors.
I have already spoken about Dr. Joanna Rose and her situation. She is not alone. There are many people like her who have complained about the fact the lack of limits has led to them having 200 or 300 siblings. They have no idea who those siblings are or where they are. There was a case in England in the past couple of years where a young couple got married only to discover they were half siblings. The Minister's Bill facilitates that eventuality. Her answer that this will be dealt with subsequently is inadequate.
It comes back to the reason I proposed the deletion all the sections dealing with donor assisted human reproduction until we have a comprehensive debate, picture and prescription as to where precisely we want to go in this regard. It is very complex and is not without serious repercussions for children and for society.
What we are doing here is that we are proceeding with elements, which are being done on a piecemeal basis, for political expediency which certainly does not prioritise the rights of the child.
Will the Minister accept this amendment in order that, at least pro temor between now and whenever the Government brings forward its limits - unfortunately it will not effect anything that happens outside this country - there will be strict limitations and it will not be anonymous so the products of those particular donors will be known? That is absolutely essential if we want to ensure the best interests of children.
We are introducing legislation to allow assignment of parentage in this Bill. The balance of AHR issues are being dealt with by the Department of Health. The clinical practice currently in the 13 clinics which operates here is three to four recipients maximum per donor.
I am astonished to hear the Minister give that response because, effectively, what she is saying is that it is up to the facilities to make that decision. The Minister is neutral and does not care how many they produce. If the number is three to four currently, she should have absolutely no compunction or no reservation about accepting an amendment which will put a limit on a statutory basis. To suggest we leave it to the facilities and that, hopefully, at some future stage the Government will get around to the setting limits is an abrogation of her responsibility and of our responsibility as legislators. I do not see any benefit in not accepting this amendment. It does not interfere with any intention the Minister has in regard to the Bill. If she cannot identify an obstacle for me, I will reconsider pressing the amendment but I cannot see one.
As fewer than five Members have risen I declare the question is defeated. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Official Report and in the Journal of the Proceedings of the Seanad.
I move amendment No. 42:
The thrust of this amendment is that on page 29, the following text will be inserted after line 38: "A transition period of 12 months, from the date of enactment, will be allowed for cases where patients have already selected or paid for anonymous sperm donors or have the donation currently in storage in Irish clinics awaiting use in treatment, to complete their treatment cycles." The rationale is that Sinn Féin has been contacted by some of those working in donor-assisted human reproduction, DAHR, clinics who still have what appear to be valid concerns on this issue. They are concerned that current patients will be punished retrospectively by sections of the Bill. The first group consists of patients with anonymous sperm donors selected, paid for and currently in storage in Irish clinics awaiting use in the treatment. They are inquiring whether there should be some consideration for these patients to enable them to complete their treatment cycles as otherwise, I understand that approximately 600 to 700 patients across Ireland will be prevented from completing their initiated treatment. A possible solution might be that initiation of new anonymous treatment cycles could be precluded from the date of enactment. The transition period of 12 months from the date of enactment in order to allow these patients to complete their treatment cycles could also possibly be allowed.
In page 29, after line 38, to insert the following:“(9) A transition period of 12 months, from the date of enactment, will be allowed for cases where patients have already selected or paid for anonymous sperm donors or have the donation currently in storage in Irish clinics awaiting use in treatment, to complete their treatment cycles.
(10) A transition period of 12 months, from the date of enactment, will be allowed for cases where individuals have already initiated the process of anonymous egg donation, to complete their treatment cycles.
(11) A transition period will be allowed for cases of treatment resulting in a sibling child from an anonymous donor for a period of 3 years from the birth of the first child or 3 years from the date of enactment, whichever of the two is longer.”.
The second group of people about whom this amendment is concerned consists of those patients entering into anonymous egg donation within the past six months but where their embryos have not yet been created. It must be remembered that the egg donation process is not an immediate process from initiation to completion but can take up to six months and sometimes longer due to the fact that following donor selection, for medical or social reasons the donor may not be ready to start the process immediately. It is my understanding that numerous patients have initiated donor egg treatment cycles but the creation of the embryos is outstanding. By enacting this new legislation, it is this group of patients, who are several months into the process of egg donation, who could be precluded from completing their treatment. Again, a possible solution to this might be the initiation of new, anonymous treatment cycles, which could be precluded from the date of enactment. However, a transition period of 12 months from the date of enactment to allow these patients to complete their treatment cycles would be a reasonable concession.
As for the final subsection provided for in this amendment, the rationale is there has been one further area in which concerns have been raised by certain clinicians in respect of sibling treatment. The legislation allows for treatment resulted in a sibling child from an anonymous donor for a period of three years from enactment. However, if the patient has recently or is about to become pregnant, she will have a very small window of opportunity to have an attempt at a second child. Might it not be more reasonable to allow for three years from the birth of the first child or three years from the date of enactment, whichever of the two was longer? This could allow patients a longer timeframe in which to make an attempt at a second child up to approximately three and a half years between births, rather than being obliged to make the decision either to have two children within a three-year window or to not have a sibling child at all.
I thank the Minister, Deputy Fitzgerald, for being proactive on this issue and compliment her on the stand she has taken. Senator Ó Clochartaigh has outlined the amendment's three provisions and has made valid points regarding the commencement and how this might be handled. I acknowledge the Minister has met the various clinics that are worried about this situation, particularly for those who are in transition and who already have selected anonymous eggs that are in storage in the clinics or those who perhaps have initiated the process but where it has not been completed. In addition, in respect of a sibling child, three years is a shorter period and at a minimum, one additional year could be added in this regard as well. The Minister, in consultation with the clinics, had mentioned doing something about delaying the commencement of this section to allow such a period of grace or transition to be afforded to those people in such a situation. The Minister might make a statement on the record to display her intentions on how this transition period could be effected to ensure that people who already had selected or paid for anonymous sperm donations or for whom the procedure already was initiated would be given that additional 12 months. In the case of a sibling and the three-year rule, after a child is born, the first and second of the next sperm donations may or may not be successful. If they are not, it could lead to being outside the three years afforded and delaying this section would facilitate a four-year period. The Minister might put on the record how she intends to deal with that because amendment No. 42 is relevant to those concerns, to which the Minister has listened.
I compliment the Minister on the steps she has taken. She should be given a chance, because she has only been in this position for a short time especially if one considers the steps she has taken since coming into office. Last week I looked it up and the first in vitro fertilisation, IVF, took place in 1978 and assisted human reproduction and donor-assisted human reproduction are from 1985. Moreover, as the first guidelines were published by The Institute of Obstetricians and Gynaecologists 30 years ago, Members have been waiting for this for a long time. It was only when the present Minister came to office that the child-centred approach took place. As for anyone to state this Minister does not care, since coming to office she has displayed a huge a amount of care in this area. Moreover, rather than burying Members' heads in the sand, she has been proactive and has acknowledged all the case law in Europe. The Minister has outlined - I have listened to it many times as well as online - what she must do regarding case law. Therefore, I ask the Minister to put on record the proposals regarding a grace period or transition period for the three elements concerned.
I thank Senator Ó Clochartaigh for tabling this amendment, which would provide for a transition period to allow couples currently undertaking donor-assisted human reproduction procedures to continue with their treatment and to facilitate an orderly move to the regulatory framework that is outlined in sections 2 and 3. I have already clarified the position on providing a transitional period. Certain explicit transitional provisions already are included, as the Senator noted, in sections 25(5) and 25(6). The provisions set out in section 25(5) allow a three-year period from the commencement date to allow a couple to have a sibling using gametes from the same anonymous donor. Section 25(6) is very important from a constitutional point of view. It stipulates there is no time limit for the use of an embryo formed before the commencement date, even where the embryo concerned was formed using anonymous donor gametes. This is in line with the constitutional protections in this regard.
I reconfirm my clear commitment, together with the Minister for Health, Deputy Varadkar, that Parts 2 and 3 will not be commenced for a minimum period of one year from the date of enactment. This is to ensure, in the interests of the many couples undergoing the stresses of donor-assisted fertility treatment, that they and their medical teams can continue their treatment. This one-year period will provide at least the same transition period set out in the proposed amendment, which will enable couples currently undergoing treatment to continue with that treatment and will give clinics time to prepare for the new regulatory framework. This is a practical and pragmatic administrative solution to which I have given a clear commitment in order that there can be a seamless transition to a new regulatory framework, which is very important. On the basis of this commitment, I ask the Senator not to press the amendment.
I move amendment No. 43:
This amendment is in a totally different spirit. It is not like the libertarian amendment about which Members have just heard, which to my mind would again completely disregard the demands of a child's dignity. I do not know if the following words ring a bell with the Minister:
In page 29, after line 38, to insert the following:“(9) (a) The operator of a DAHR facility commits an offence if he or she makes or permits to be made an appointment or any other arrangement for or on behalf of an intending parent or parents with a person or facility that provides anonymous gamete donation services outside the State.(b) A person who commits an offence under this subsection is liable—(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, and
(ii) on conviction on indictment to a fine not exceeding €70,000 or imprisonment for a term not exceeding 2 years or both.”.
Now if my wife is my grandmother, then I'm her grandchildThis was a song made famous by Brendan Grace and a number of others some years ago. It says a lot about the strangeness of this legislation that there are aspects both of what it contains and what it omits that bring this crazy scenario to mind. The Minister may remember the lines:
And every time I think of it, it nearly drives me wild
'Cause now I have become the strangest 'case you ever saw
As husband of my grandmother, I am my own grandpa
It sounds funny, I know but it really is soWhat was set out in a humorous song becomes vaguely possible in the light of the provisions of this legislation.
I'm my own grandpa
This amendment would provide that:
The operator of a DAHR facility shall not use or permit to be used in a DAHR procedure a gamete or an embryo provided by a donor where -(a) the donor of that gamete or embryo, as the case may be, and the intending parent or any one of the intending parents, as the case may be, are within the prohibited degrees of relationship as set out inPart 1of the Schedule, or
I apologise. The Minister may take what I have said already as read.
Amendment No. 43 refers to where the operator of a DAHR facility commits an offence. I spoke on this issue on Committee Stage. Basically, the amendment would establish that it is an offence to facilitate an arrangement involving anonymous gamete donation services from outside the State. As I said on Committee Stage, the amendment evokes certain provisions of the abortion information legislation of 1995 and would provide that it is an offence to make or permit to be made an appointment or any other arrangement for or on behalf of an intending parent or parents with a person or facility that provides anonymous gamete donation services outside the State. Again, the question must be asked as to whether we are serious about preventing the generation of children in circumstances where they will never know who their genetic parents are. If we are, we will ensure the strongest measures are in place to prevent any facilitation of that, which would clearly be intended to get around the provisions of the law of this country.
I dealt with this issue previously and said then that the prohibition is so phrased that if intending parents are referred to a facility that provides anonymous gamete services, the operation would commit an offence, even if the referral was not in order to receive services using anonymous gametes. This is problematic because, clearly, many services do both and provide both anonymous or identifiable gametes. People could be referred for identifiable donations, but because of how this amendment is phrased, availing of that service would be an offence.
I move amendment No. 44:
This is the amendment I referred to before and I will not read the verses of the song "I'm My Own Grandpa" again, although I am tempted. It could be career ending.
In page 30, before line 1, to insert the following:“Prohibition on use of gamete or embryo of related donor
27. The operator of a DAHR facility shall not use or permit to be used in a DAHR procedure
a gamete or an embryo provided by a donor where—(a) the donor of that gamete or embryo, as the case may be, and the intending parent or any one of the intending parents, as the case may be, are within the prohibited degrees of relationship as set out in Part 1 of the Schedule#, or
(b) the donor of that gamete or embryo, as the case may be, and the spouse, civil partner or cohabitant of the intending parent or any one of the intending parents, as the case may be, are within the prohibited degrees of relationship as set out in Part 2 of the Schedule#.”.
I will ask the parliamentary reporters to do a cut-and-paste job when preparing the Official Report. The amendment is about restricting close relatives from donating gametes to create a child and to avoid the "I'm My Own Grandpa" scenario. There is an obvious and troubling lacuna in the legislation and it is clear that, for the child who results from DAHR using relatives as donors, there is a serious and deliberate blurring and entangling of the legal and biological family links. The child's personal and family identity becomes confused and complicated by these procedures and intergenerational donation is also a possibility under the Bill. It occurs when a mother donates an eggs for use by her daughter or a daughter donates an egg for her mother. In the former case, the child's biological mother is treated in law as his or her grandmother and the birth mother is in fact giving birth to her own half-sibling. The scenario could be rendered as my ma is my own grandma. From the child's perspective, his half-sister would be treated in law as his mother in the case of the birth mother giving birth to her own half-sibling. Under the Bill, the child will be told that his or her maternal uncles and aunts will also be half-siblings. The children, who under this Bill the law will treat as first cousins, will be his nephews and nieces. It is so crazy that it must be worked out in advance in order to write it down yet the Bill has nothing to say about the possibility of all of that besides going right ahead and saying that we will not interfere. The Children and Family Relationships Bill puts no restriction on the use of DAHR to avoid either the deliberate procreation of a child whose genetic parents are blood or half-blood relatives and the deliberate procreation of a child in circumstances where the structure of his or her family and extended family, as a matter of law, will contradict that structure as a matter of nature and biology. This is because there is no provision in the Bill to restrict or regulate the use of sperm or eggs provided by a donor who is related, even very closely, to one of the intending parents. The rationale for extending the ban to spouses, civil partners and cohabitants of the intending parents is that these are all persons who may or may become entitled to be deemed a legal parent of the child conceived and hence the same issues of confusion between the biological and legal family could then arise if, at the time of the procedure, the donor was a relative of such a spouse, civil partner or cohabitant.
Examples of cases covered by the media highlight issues that can arise. The British TV personality Mary Portas recently made public that she and her female partner had a son through IVF using the sperm of Portas's younger brother. Under English law, and this Bill will introduce the same problem here, the boy's father as a matter of nature and genetics is his uncle in the eyes of the law and his mother in the eyes of the law is his aunt. If Portas's brother has children of his own, they will be half-siblings of Portas's son. However, in the eyes of the law, they will only be his first cousins. I could not make this up yet this is the new reality when the Government and legislators decide that it is only about whatever the adults want and all of this talk about children's best interests is just such hollow hypocrisy in the light of what it is proposed to tolerate. I hope the Minister accepts there are issues in respect of donors related to the intending parent, and I have not mentioned all of them, which require amendments to the Bill. On Committee Stage, there was reference to prohibition of incest and all that but it should be quite clear that in any legislation that proposes to recognise parents and the status of who is the parent in a given situation, this should have been thought of and consideration should have been given to those situations. If a same-sex couple wants to bring a child into the world and the sibling of one of them provides the sperm and the other partner provides the egg and is the carrying mother, it is unfair to a child to confront him or her with the reality that his father is his own uncle and whatever else follows from the bizarre concatenation of events imposed on a child in this situation. I ask the Minister to address it. While I have addressed the amendment in tones of irony, I assure the Minister it is not in tones of levity. I refer to what is allowable now in the world where donor assisted human reproduction is provided for in this way, which is happening in the world. In earlier responses to amendments, the Minister was quick to point out what is happening in other jurisdictions and the direction the law has taken under the European Court of Human Rights jurisprudence but the Minister must also be attentive to what is happening in the world now and how permissive and disregarding of children's rights the law in other jurisdictions has become. The Minister should explain to us why she is taking the law in a similar direction here.
As I said when the amendment emerged before, my information is that this situation is covered by consanguinity rules in other legislation. In any case, referring to the Portas case, what about it? Who gives a damn if he is his uncle, grandmother, father and daughter?It does not matter because no consanguinity rules were infringed in that case. I have only recently heard of Ms Portas, but she seems an admirable and efficient woman. Her brother donated sperm to her partner, so there is no genetic connection at all. There is no medical difficulty about that. I do not see any problem and if it is a question of nomenclature, "God, ugh!" is all I can say. I am not sure if one can spell that, so I will spell it out for the transcribers: "u-g-h" with an exclamation mark.
I raised this issue last week and the Minister responded concerning the whole area of inter-generational and inter-family donation. The Minister said this would be dealt with in detail in the next Bill on artificial human reproduction. As we can see, there can be hundreds of computations. Once it takes off at that level into the multiple range of numbers and computations, unless there are some borders and limits put on this, how can it be determined to be child-centred? Surely it is definitely adult-centred. I am asking this from the point of view of debate. Have we now got to the point where all societal rules are bad and anything goes?
The more we go into the detail of this, the more it becomes obvious - even though the Minister, her officials and the Government side are in denial - that we are ill-prepared for what we are doing. It has not been fully thought out. The most serious ethical, legal and other considerations are being raised. That is why other countries have taken a much more cautious approach to this by limiting it in various ways. They do it from what they consider to be in the best interests of the child and they put forward those reasons. From some of the Minister's answers I detect that there is a desire to be leaders in this area, so that we can say we are more liberal than those other countries. One of her answers within the last hour would have illustrated that.
There are issues surrounding children, however. We know from a child born to an unmarried mother and where an aunt assumed guardianship, that she was reared thinking the aunt was her mother. She subsequently found out that the person she thought was her aunt was her natural mother. We know from the testimonies of such children that has had an effect on them. I am astonished and a little appalled that we are moving in a direction that clearly has not been fully thought through. We are attaching a wagon to an ideology that may subsequently turn out to be very false indeed.
I ask the Minister, even at this late stage, to give pause for thought on the consequences of a lot of what she is doing. The fallout from this will have serious ramifications for children but we are told that we will pick up the pieces on that in a subsequent Bill and that it will be sorted out subsequently. In the area of children, however, I do not think that is a good enough answer, given the sad history this State has of failing children over many decades. The Minister should give pause for thought and follow a much more cautious approach that has been taken in other countries, rather than seeking to be ahead of the posse and to hell with the children.
In cases of assisted human reproduction, where the use of donor gametes is required, some individuals and couples prefer to use gametes donated by a family member, rather than from an unknown third-party donor, that is, a stranger. This is known as intra-familial gamete donation. An example of this would be where a woman donates an egg to her sister to use as part of her AHR treatment - and we saw such a case in the courts recently - with her spouse or partner whose sperm would be used to create an embryo.
According to the European Society for Human Reproduction and Embryology, while such intra-familial gamete donation does occur, the evidence suggests that it is relatively rare. In discussion with the Institute of Obstetricians and Gynaecologists they stated that there are fewer than ten cases of intra-familial gamete donation in Ireland per year. There are about ten such cases per year in Ireland.
There are different types of intra-familial gamete donation. The type of donation can be intra-generational, inter-generational or intra-familial, and there are issues of consanguinity to be considered. It would be nonsensical to suggest that clinics will provide fertility treatment using clearly consanguineous gametes. It would be a complete breach of all relevant medical ethics and duty of care. There is no question of that.
The effect of this amendment would be to prevent, for example, sister-to-sister or cousin-to-cousin donations. This is a complex ethical area and nobody would deny that for a moment. There are issues in terms of this type of donation and there is no question but that it is a complex ethical area. A small amount takes place in Ireland and is subject to clinical assessment counselling. This is not to allow children to be created whose genetic parents are close relatives. As I have already said, medical ethics would ensure that no clinician would do this, in the interests of the child to be born.
It is, however, a way for an intending parent who cannot provide gametes to have a genetic connection with his or her child. That is why people do it. There are a number of reasons why individuals would prefer to use familial donation, in the broadest sense of that word, rather than a stranger's donation. There are a couple of other reasons. One would also have to carefully examine a range of points on this matter. As with kidney donation - I am not saying it is the same, so do not get me wrong - one would have to address certain issues, including, for example, the degree of pressure that might be brought to bear on somebody within a family, undue influence on donors, the importance of counselling for all parties involved and the importance of disclosure. There is, therefore, a whole range of issues to be considered. That is properly part of AHR legislation and the Department of Health is the right place for such issues to be considered.
Department of Justice and Equality legislation is not the place to deal with those issues. That is part of what will be considered in the broader legislation. In the meantime, we have had the recent Supreme Court case reaffirming what had previously been the law - that the mother who gives birth is the mother, as opposed to the person who made the donation. This is a matter for broader AHR legislation, as opposed to being dealt with in this legislation, where we are dealing specifically with issues around the assignment of parentage, examining consents and moving from anonymous to identifiable donations.
I am disappointed by the Minister's response, although I am not surprised that I am disappointed. However, I do not think one can keep kicking the can down the road to AHR legislation when the Minister is opening a Pandora's box with this legislation. This amendment should be considered on its merits. It is not as though these very unpleasant realities of modern life are not already on our threshold.
I heard the Minister's reference to medical ethics.However, with regard to the consanguinity, the Minister said that clinics would not be involved in doing that. She said it would be in breach of medical ethics. She did not say it would be in breach of the law. While the Minister is right undoubtedly that there are very few cases of this per year in Ireland, the fundamental question remains. It is not just a matter of assisted human reproduction, AHR, legislation that might come down the line because the Minister is legislating around parenting issues here and she must legislate on the basis that we might never have such AHR legislation in future and therefore she should legislate to deal with anything that could flow as a consequence of this legislation. It seems to me that what could flow from this legislation, with the way the Minister is recognising as parents all of these donor assisted human reproduction, DAHR, scenarios, is that we could have this mixing and confusion of the child's natural genetic origins and parenting and the child's legal relationships. It ought to be addressed in this Bill, and I will press the amendment.
I move amendment No. 51:
This amendment, which we also discussed on Committee Stage, relates to the obligation on a donor assisted human reproduction, DAHR, facility to retain and provide certain information and what happens when the Minister is satisfied that the DAHR facility is not in compliance with his or her obligations under section 28. What I find remarkable about the law as the Minister has proposed it here is how timid and facilitating it is, as this legislation is time and time again, in terms of the DAHR facilities. While the entire legislation is premised on the idea that it shall not be possible to procure gametes anonymously, it is clear that the Government does not really mind if it does happen. The Government does not regard it as a terrible intrusion on the rights of the child or an injustice to the child if a child is denied the knowledge of who are his or her genetic parents. I say that because the Minister is so timid in her approach to the clinics. What the law provides is that the Minister, where satisfied that the operator of the facility is not complying, may issue a direction to the operator of the facility requiring them to comply. The Minister has the option of applying to the Circuit Court for such an order requiring the facility to comply so the Minister can give the direction or go to the Circuit Court for the direction. Either way, if the Minister is satisfied that his or her direction is not being complied with, the Minister may apply to the Circuit Court for an order. The Minister can either go to the Circuit Court for an order in the first instance or, his or her direction not having been complied with, apply to the Circuit Court anyway under subsection (3), and the Circuit Court may make an order directing the operator of the clinic to comply with the obligations.
In page 34, line 35, after “ability” to insert “and intention”.
There is a second stage. Where the Minister becomes satisfied that this order, having been given by the courts, is still not being complied with, he or she can go to court again for a second type of an order under subsection (5). That order is from the court, having satisfied itself that there is no compliance with its earlier order, prohibiting or restricting the performance at the DAHR facility of DAHR procedures only; they can fire ahead presumably with any other assisted human reproduction. Even though they are flouting the law it is clearly fine for them to carry on doing other AHR procedures for some reason. However, they will be restricted from doing DAHR until such time as they satisfy the court of their ability to comply with their obligations. They do not even have to satisfy the court of their intention to comply with the obligations but merely their ability to comply. It might still be their intention not to comply or they might be negligent about saying whether they will comply. It would seem that it is a question of their ability to comply that is the only concern of the court.
There is further provision where the operator of the facility, if the court makes an order so prohibiting or restricting them, may go to the High Court to appeal on a point of law and the determination of the High Court shall be final and conclusive. I find this remarkable because there is no question that their failure to comply is, in the first instance, an offence and there is no question of their failure to comply at the second stage being an offence, merely that they may be prohibited or restricted from operating only DAHR, and even then only prohibited until such time as they satisfy the court of their ability. Either this is very sloppily worded or the intention is to not interfere with the clinics or the facilities too much.
What I have proposed in amendment No. 51, and we will come to amendment No. 52 shortly but I have substantially spoken to it now, is that it would not be a matter of satisfying the court of their ability to comply with their obligations under section 28 but their ability and intention to comply.
This is all getting a little tedious because this question was asked and was answered. It has been asked again now and it will be answered again. It seems to me in any case that the phraseology indicates that compliance is there. I would have thought that was the point. The phrase "satisfying the court of their ability to comply" means the court asking: "Have you done this? Yes. Have you done that? Yes." That is the checklist done and dusted. In other words, the phrase "their ability to comply with his or her obligations" is compliance. It is spelt C-O-M-P-L-I-A-N-C-E. It has more syllables than "one" but it still should be understandable.
I cannot understand why Senator Mullen would use the phrase "timid" when the reality is that the provisions in the legislation will allow the court, if the failure is ongoing, to order the clinic to cease providing donor assisted human reproduction services. That will have serious financial and reputational repercussions for the clinics concerned and would be a strong incentive to comply with the requirements set out in section 28.
Section 32(5) sets out that the courts can, by order, restrict the performance of DAHR procedures if the operator is not complying with his or her obligations under section 28, and the restrictions may not be lifted until the operator satisfies the court of his or her ability to comply with the obligations. This amendment would specify that the court must also be satisfied of the operator's intention of complying.
The amendment appears to be predicated on a belief that the court will lift any restrictions that have been imposed on the operator if the operator proves that he or she has the technical capacity to comply with the obligations, regardless of whether he or she is going to comply. That is simply not the case. The legal obligation to comply is clearly set out in section 28, and section 32 provides the Minister and the court with remedies if the operator fails to comply. There is absolutely no question of these remedies being undermined by the operator somehow proving technical capacity to comply with obligations while continuing in practice to flout those obligations.The Senator has also spoken on the next amendment, which would create a specific offence regarding a DAHR operator's failure to comply with its obligations under section 28 to keep and retain certain records. The Senator wants to make sure there are consequences but, as I said, section 28 in subsection (3) already very clearly provides remedies for failure to comply. These provisions enable the Circuit Court to order compliance. If there is an ongoing failure the Minister may make a further application to the court under subsection (5).
Section 32. The Minister may make a further application to the court under subsection (5) and if that failure is then ongoing, as I said, the Minister can order the clinic to cease providing the services. I think it is very clear. The key issue in enforcing compliance is a robust inspection regime under which the officers designated by the Minister for Health will be able to inspect the records being maintained by the clinic to ensure they are recording and retaining the necessary data for the national donor-conceived person register. Section 31 imposes stiff penalties for non-compliance with or obstruction of such inspections, namely potential imprisonment of two years or a fine of €70,000 on conviction on indictment. I cannot accept either of those amendments.
Just how many donor-assisted human reproduction cases is she contemplating will take place? On her own and the Government's reassurances, DAHR will presumably be a very small part of any clinic's business. The Minister is not proposing to interfere one iota with their general business. The Bill simply provides for the Circuit Court to make an order prohibiting or restricting DAHR and then only until such a time as they satisfy the court of their ability to comply. I remind the Minister that ordinary words have ordinary meanings. She has not used the word "intention", she has only used the word "ability" and she has not told us why.
Let us remember what is at stake here. What is at stake here is that a clinic, a DAHR facility, may have failed to maintain records that would enable a child in the future to know who they are. Or am I wrong? There is a potentially irreversible failure of duty of care to the child under this legislation, end of story. It is irreversible, not solvable, because the donor or knowledge of who the donor is is long forgotten. That is either a serious matter or it is not. I really invite the Senators here to consider on its merits what the Minister has proposed in this section. It is clearly regarded as a trivial matter. By the way, I do have something to add on the subject of amendment No. 52. The Minister herself mentioned the penalties in section 31. Why are those penalties not there in section 32? Why is it only an offence if they fail to comply----
That is a fair point, my apologies. To summarise, the Minister really must be joking. She has not answered me as to why the words "and intention" are missing and it is not too late to change it. She could go back to the Dáil and I think she should. It should not be just a matter of a clinic being able to satisfy the court of its ability: it should be its ability and its intention to comply in the future.
If right was right, they would be at risk of being restricted from performing AHR full stop, not just DAHR. It should not just be at the later stage once it has been established, not that they have failed to keep records but they have failed to comply with an order around the keeping of records. Even then, the Minister seems to regard it as the most trivial of matters.
I do not agree with Senator Mullen's analysis of the provisions. If another commercial service in another area were forced by the court to cease a part of its operations, that would not be a timid response. The service operator would view it as a serious problem and would quickly take action to enable it to resume operations. The intention is to bring the DAHR facilities into compliance to vindicate the child's identity rights. If they do not there are consequences and those consequences are spelled out clearly. A clinic in such a circumstance would obviously also be liable for any damage to the child from its failure. What we are doing in this legislation for the first time----
In this legislation we are regulating the area for the first time. A broader assisted human reproduction Bill is necessary but we have dealt with the parentage issues. We are not legislating on the whole AHR area here, as I have said again and again. We are dealing with particular issues in respect of parentage and these provisions are designed to ensure there is compliance and there are consequences if a clinic is not compliant.
I move amendment No. 52:
This follows on from the last amendment. The core issue is that if a clinic fails to keep records and as a result, certain children will never know who their parents are, that is not even an offence. Clinics have committed an offence if they have impeded or failed to comply with the requirement for an inspection, but a failure, negligence, ill will or whatever it was that caused them not to keep the records which will cause a child in the future not to know who his or her genetic parent or parents are is not an offence. That is wrong. The Minister’s approach is far too timid. It is as though she was in the pocket of the clinics. It is not even the lightest of light touch regulation.
In page 34, to delete lines 37 to 40 and substitute the following:“(6) An operator of a DAHR facility commits an offence if he or she fails in their obligations to comply with section 28 to the extent of causing the Circuit Court to make an order under subsection (3).
(7) A person who commits an offence under this section is liable—(a) on summary conviction to a fine not exceeding €3,000, and
(b) on conviction on indictment to a fine not exceeding €100,000.”.
Second, I was referring to the Minister in her corporate capacity. I am quite happy to adjust my comment to say it is as though the Government is in the pocket of the clinics. In fact, it is remarkably as though the Government is in the pocket of the clinics.
-----to discover somebody else who was in the business of providing these services and presumably making a profit in providing them had acted in such a way that in the future they would not be in a position to find out who they were.It is an end to the humbug of Senators who want to claim they are in favour of children's rights and at the same time get annoyed with me for making the reasonable observation I have just made. Can we have an end to the humbug? It should be an offence.
If it is an offence to fail to comply with an inspection, it should be an offence to act in such a way that a person is deprived of the opportunity in the future to find out who he or she is. It should not be just at the stage when there is non-compliance with a court order, although that certainly should be an offence. If there is non-compliance with a court order, that is a clear demonstration of recklessness or intention to do wrong. My amendment proposes that it should be an offence if the obligation to comply with section 28 has not been complied with to the extent of causing the court to make an order under section 52(3). It should not be just at the late stage of failing to comply with a subsection 3 order. Let us remember we are not making it an offence if the clinic does not comply with the Minister's direction that it complies with its obligations under section 28.
The amendment proposes that if there has been a Circuit Court order requiring compliance, that is, if there is evidence that will give the Circuit Court the grounds required to make such an order, surely an offence is well grounded at that point? We are not talking about a vulnerable weak person being at the wrong end of the law in terms of what I am proposing in the amendment. It applies to a corporate entity, a money-making entity, an entity that is up and running and is in the business of providing these services. It must be hard to understand why the entity would not be compliant if it is in that business in the first place. That is the basis on which I am proposing that there is a well grounded offence if the Circuit Court gets to the point that it has to make an order requiring them to comply with their record keeping obligations under section 28.
This amendment proposes that they would be liable on summary conviction to a fine not exceeding €3,000 or on conviction on indictment of a fine not exceeding €100,000. As I have said, if the Government is not to be in the pocket of the clinics and if this is not to be the light-touch regulation of the sperm banks, to go with the light-touch regulation of the banks that brought this economy into the mire, we will see change and we will see the Minister accepting this amendment.
-----he is teasing it out. This is real scrutiny.
I would consider it a very serious offence and a real breach if records were lost. I think there should be a sanction for the loss of records. After all, Senators van Turnhout, Power and I spent weeks and months on a Bill trying to ensure that an adopted person's identity was protected and could be revealed to him or her. Is it not as important that a person who is conceived through donor assisted human reproduction has that information? Let me give the example of Dr. Joanna Rose, who was conceived in this way and has done an incredible level of research for her PhD on people who cannot identify his or her father donor. She has said that it bothers her every day of her life. It becomes a serious mental health issue. We value mental health so why should we not value it in respect of this issue?
Let us call a spade a spade. This is a big money business. It is significant cost to have assisted human reproduction. Do Members know how many thousands it costs? I am sure it costs a great deal more if one has to avail of a donor on top of that. I know a lot about assisted human reproduction between a couple who supply their own egg and sperm. I have many friends and family members who have availed of assisted human reproduction, however, I do not know anything about donor assisted human reproduction and how much that costs. This is a major money business. When one goes into the waiting room one will see middle class people who can afford it. I think if there is a serious breach, there should be a sanction.
I look forward to hearing the Minister's comments.
There are couples who would walk in their bare feet over hot coals to have a child. The constant reference to money turns this entire situation into a dirty backstreet operation. These are professionally qualified people that are giving a service. I will argue the issue of anonymous donation until the cows come home because I feel very strongly about it. I want people to stay with the realities. A service is being provided to allow couples to have a child they will rear and love. Couples are prepared to mortgage their houses to do that.
I believe a closure order is a serious sanction. Is Senator Mullen suggesting that a closure order does not constitute a serious consequence for services such as this? Some of his other assertions are ridiculous.
Some of Senator Mullen's allegation are ridiculous. On the one hand, people are saying that I am not consulting the clinics enough, whereas Senator Mullen tells me I am in the pockets of the clinics. One would not think that when one reads their submissions and what they have to say about the approach I have taken, in regard to moving from anonymous donation to identifiable donation.
My only interest in this legislation is ensuring that parentage provisions are in place and work. That is what I am focusing on. I have said repeatedly that the whole area needs regulation. We have had the commission on assisted reproduction in 2005. We heard one of the Senators, Senator Cáit Keane speak about what happened 30 years ago when the medical profession first addressed the issue and put regulations on medical ethics in place. We are the first government that has given a commitment to legislation for it and to put in place clear initiatives and legislation that are in the best interest of the child in the areas of consent and donations.
There is clearly broader work to be done in this area. I am dealing with certain aspects of the issue in this Bill. I have said that there is clearly a job of work on which the Department of Health has already done a significant body of work with a strong ethical perspective as there are serious ethical issues that must be addressed in the area of assisted human reproduction and donor assisted human reproduction. That work has to be done.
Failure to comply with an inspection will encompass the way in which a DAHR facility complies with the obligation to keep the records in accordance with what is outlined in the legislation. The offences outlined in legislation will kick in at that point. There will be a major responsibility on the inspection regime to vindicate the child's identity rights. Clearly that is at the core of any inspection regime because it is central to it.As a Government we have made it so central that the child has access to their identity and to the information that is available in the clinic. That information has to be held there and has to be accessible and available. That is the whole point.
There is a concept well known to the law called "strict liability", and the Minister does not need me to explain it. It is when something occurs that is of such gravity that a party is liable, regardless of their intent. That applies in tort law but it also applies to a certain limited extent in criminal law where the mere commission of an act or the failure to commit an act in a certain case will attract liability.
The Minister referred to section 31, which provides that a person commits an offence if he or she obstructs or interferes with an authorised person or a member of the Garda Síochána in the course of exercising a power conferred on them by this legislation or where a person fails or refuses to comply with a request or requirement, or to answer a question asked by the person. It could hardly be otherwise but that would be an offence. What is remarkable is that there is no comparable offence grounded in the failure to keep records themselves, given the awesome consequences that would have for certain people. That is why I asked whether the Government is in the pocket of the clinics. I think it is, because otherwise some kind of offence would be stated here. If the Senators who think it is vexatious that I should say this, let them tell me why it is acceptable that it is not an offence to act so negligently or so recklessly, or intentionally so wrongly, whatever it be, so as to deprive the child of a chance of discovering who they are. I would like to hear them try to justify that because that is what is at stake here.
While I sympathise with Senator Gerard P. Craughwell's comment to a degree when he says we should avoid in any way tainting those whose pain of infertility and whose desire to have a child causes them to spend money, we have all been at pains in the discussion of this legislation to make it clear that we are casting no judgment on anybody. We all understand the desire to have and love and rear a child is real and is rooted in the human experience and it is laudable, but it is not always possible to comply with that desire where there are supervening questions of rights of other parties. That is what these amendments are about. It is about recognising there is a greater right, which is the right of the child to be brought up, where possible, by their own genetic parents and that should not be deliberately impeded.
Where money becomes relevant is in my justifying an amendment that would fix criminal liability, not on an individual who was without any strength of arms to defend themselves, but on a corporate entity. There are not many, if any, of these clinics that I am aware of that are operating voluntarily. They are commercial entities so let us call a spade a spade, otherwise we will do the public a disservice. They are commercial entities and they ought to be targeted by the law where they do not comply with the clear obligations of this legislation. That is all this amendment is about.
I move amendment No. 55:
The purpose of the amendment is to provide that a young person who has reached 16 years may make arrangements to find out about who he or she is, as opposed to being required to wait until reaching 18 years before acquiring the right to seek such information. Section 34(1) reads: "A donor-conceived child who has attained the age of 18 years, or the parent of a donor-conceived child who has not attained the age of 18 years, may request the Minister to provide him or her with the following information from the Register". I am proposing to reduce the specified age to 16 years, which is an age at which parents expect children to show considerable cop-on, know-how and capacity to deal with issues and they are already engaging with some of the significant realities of life at school and in social settings. It would be better if young people had the right to seek the necessary information from the register, either on reaching the age of 16 years or before that age where their parents see fit.
In page 35, line 20, to delete "18 years" and substitute "16 years".
I second the amendment.
Will the Minister respond to the concern raised by the Institute of Obstetricians and Gynaecologists as well as a number of psychologists that it may be preferable for people conceived by assisted human reproduction to obtain information about their identity before reaching the age of 18 years? I have raised this issue on a number of occasions but the Minister has not commented on it. I ask her to address the matter because it concerns me. While I am unsure as to what is the appropriate age at which to obtain information, most of us are concerned that this information could have an impact on young people of a particular age. It may come as a major shock and surprise to them if they are not prepared for it. This scenario must be avoided because it could trigger a mental health issue. We must be careful as to how this matter is enshrined in law.
I know what the Minister is trying to do and agree with the idea that people should have access to information about their identity. However, I wonder if the age of 18 years may be too late and may create a problem for the person receiving this information. As I indicated in an earlier contribution, it could dislocate a young person's relationship with his or her parents.
The Senators raise an important point concerning information about a child's origins and identity. In the first instance, it is preferable if parents discuss the issue with and inform their child. The comments by the Institute of Obstetricians and Gynaecologists were connected to the type of counselling a couple would receive in the first instance and the need to fully discuss these types of decisions and point out the various implications in terms of the identity issues that arise. This will require a cultural shift towards greater openness, discussion and disclosure. There has not been any impetus towards such a shift in this country in respect of donor assisted human reproduction. The provisions we have made in this regard will encourage this, however.
On the issue of age, as I indicated, the best practice would be for parents to have discussions with their children at an earlier age than 18 years. We have learned from the adoption process that the earlier discussions about a child's adoption take place, the better the outcomes. I reiterate the point I made on Committee Stage regarding the proposal in this amendment.I have some sympathy with the spirit of the amendment in that we do not take enough account of the position of mature minors in our legislation in general, and we often have different ages for different aspects of our legislation. It is an issue which requires consideration at a whole Government level, rather than being addressed piecemeal for a small minority of children in the exclusive context of donor assisted human reproduction, so I cannot accept the amendment.
I move amendment No. 58:
In page 35, lines 35 to 37, to delete all words from and including "(1) A" in line 35 down to and including line 37 and substitute the following:"(1) A donor-conceived child who has attained the age of 18 years may request from the Minister the name, date of birth, contact details and up-to-date full medicalhistory of a relevant donor, as recorded and updated in the Register.".
This amendment states that "A donor-conceived child who has attained the age of 18 years may request from the Minister the name, date of birth, contact details and up-to-date full medical history of a relevant donor, as recorded and updated in the Register." It adds to the section in question the provision that the up-to-date full medical history of a relevant donor be kept updated in the register. I listened carefully to a previous amendment which had a similar connotation and the Minister said there was no method in the amendment to give effect to this and there were no sanctions attached to it. That can be overcome quite easily if she were to accept the principle of what we suggest. The donor could sign an undertaking to update the register in the full knowledge of the prescribed sanctions.
I see that there are practical difficulties but they do not mean we should abrogate something which would be in the best interests of the child and which would, in later life, be essential to their well-being. Students, who will be most of the donors, will have temporary accommodation and may be very difficult or impossible to subsequently trace. There is a requirement inherent in this legislation for some updating to be made of the register and the best interests of the child will certainly be served by having details of the health history of the donor being made available to him or her.
Some genetic ailments have serious consequences for siblings, children and other family members, such as ovarian cancer. Along with other cancers it is desirable and maybe essential that children are aware that they are at risk of them. Ovarian cancer is a particularly aggressive and insidious disease which has significant consequences for female members of the family. Generally, when it is detected in a member of the family relatives and children will go for regular scans and if they do not do so they are at a much higher risk of contracting the disease. These scans are carried out on an annual basis because of the nature of the disease.
There are also implications for women whose ovaries are hyperstimulated using hormones in order to provide the donor eggs which will be part of the process we are discussing. In general it will be poorer women from developing countries who will be donating because they are so financially challenged and this raises very serious and significant ethical and moral issues. Some countries outlaw egg donations completely, though I do not have all those countries in front of me at this moment. France, Germany, Austria and Switzerland allow sperm donations but restrict them to married couples or co-habiting couples in a stable relationship and they are among the countries which outlaw egg donations.
One must ask where the champions of women are and where are the champions of the poor. These are the people that will be affected, perhaps in other jurisdictions, because of the unregulated and unrestricted model we have here. These issues require a lot more consideration and analysis before we go down the road proposed. The legislation is open-ended and I have great difficulty accepting that.
The donor-conceived child will have the option of contacting the donor and can ask for this information if he or she wishes. As I have already said, the broader medical information will be dealt with in the Bill currently with the Department of Health. It will set out the rules under which the Minister for Health may be asked to contact a donor or a donor-conceived child in the unlikely event that a serious genetic issue is identified. I say "unlikely" because donor screening is extensive and very likely to identify serious issues and ensure that unsuitable donors are not recruited in the first instance.
I gave some statistics earlier on the amount of genetic issues which arise in donor-conceived children and some research suggests they are approximately 20% less than in the general population because of screening. Gamete donors are screened extensively and the medical histories of between three and four generations are looked at. Where ovarian cancer is known in the female line it would reflect in the screening. In view of the new regulations we are bringing in, at 18 years of age the child is in a position to have access to the donor to look for updated information. That is the key point.
If the well-being of the child is predicated on contacting the donor we are abdicating our responsibilities as a State in the architecture we are providing around DAHR. While some eggs may come from India, most come from Ukraine. How will the information be updated if it relates to a student living in Kiev or Donetsk?That student living in accommodation can be screened at the age of 18 to 24. There may be no indication in the screening of any risk of this particular disease. However, like most of these diseases - and this disease in particular - what triggers the concern and what would give rise to constant monitoring of the health of a child born from the donor egg would be a clear indication that this had occurred in the child's mother at a certain stage. That may well be, and it is probably very likely to be, after the age at which the egg donation was made. It could be ten years or 15 years. By the time the person reaches 18 or 20, that is when that information might just become available and would be crucial. I do not see why we cannot impose an onus. Implicit in the Minister's reply is that when the child reaches the age of 18 he or she will be able to contact the donor. The donor will obviously have moved address many times. How will that contact be available to the child? If it is available as readily as the Minister says, why would there not be an onus on the donor to keep the register updated? That would be the authority in Ukraine - if the donor is from Ukraine - where the donation would have been made in the first instance. This information would then be available to the facility here. The Minister is taking an absolutely minimalist approach to the information, which in my opinion puts the child or the donor at risk. That is irresponsible, to be quite honest.
This is a simple, straightforward amendment which, logically, I do not think the Minister can argue against. It provides that there would be a requirement for the person giving the egg or the sperm to sign an agreement that if he or she contracts a life-threatening disease, he or she will provide that information. In my opinion, the minimalist approach being taken by the Minister shows a lot of flaws. I think it should be addressed in this legislation. The Minister may reply by saying that it will be addressed in a more substantive Bill which may come at some stage in the future, but it may not be addressed there and we cannot be sure. We are legislating for now and deciding on what is before us. The lacuna in this area is of a very serious nature.
I move amendment No. 68:
These amendments are designed to improve the position of the unmarried father. I discussed my concerns on Second Stage and on Committee Stage. The amendments would provide a rebuttable presumption of guardianship for all unmarried fathers. As I said previously in the debate, we should be trying to do everything possible to encourage all fathers to be as involved as possible in their children's lives, provided that this is in the best interests of the child concerned. This country has a terrible history of excluding unmarried fathers. They have no constitutional rights and they have had little or no legal rights to date. I appreciate that the Bill improves on that situation somewhat by providing for guardianship rights for unmarried fathers where they have been cohabiting with the child's mother for 12 months, including for three months after the birth of the child. I appreciate that this is a significant step, but I do not think it is far enough. I am concerned in particular that the focus in those provisions is on the father's relationship with the child's mother and not on the relationship between father and child, which, in my view, should be the key consideration. If a father is prepared to be involved in his child's life, to accept both the rights and the responsibilities that come with fatherhood, then we should facilitate and encourage that, regardless of whether his relationship with the child's mother is good or not. All parents should work together in the interests of their children. However, I accept that concerns have been raised with me by some groups around giving guardianship rights to all fathers because, in a minority of cases, there may be an issue if the child was conceived through rape or if there are concerns about the safety of the child or the mother. In those situations it would not be right for the father to have automatic guardianship. However, these comprise a very small minority of cases and there are ways of dealing with them. Rather than having a blanket exclusion of all unmarried fathers - unless they are cohabiting with the mothers and thereby fit the criterion in this Bill - I think there are more appropriate ways of providing rebuttable presumption of guardianship rights to all unmarried fathers, with provisions to deal with circumstances of rape and safety issues.
In page 40, to delete lines 8 and 9 and substitute the following:“(e) the father is a guardian of the child by virtue of section 6D, or
(f) the circumstances set out in subsection (4B) of this section apply;”,”.
My amendments would introduce a rebuttable presumption that all unmarried fathers are entitled to guardianship rights. However, those rights would not kick in until 60 days after the birth of the child. During that 60-day period the mother would have an opportunity to lodge an objection to the District Court outlining her objections to the father being given guardianship rights, either on the basis that the child was conceived through rape or that a serious safety issue arises. If the mother makes such an objection then the process would stop and the father would not then have automatic guardianship rights in respect of that child. If the father wishes to challenge that ruling he would then have to challenge that ruling in court, issue a defence against those charges and prove that it is in the child's best interests that he be given guardianship. A small number of cases would have to go to court, but this would be a significant improvement on the current situation whereby, if the mother does not provide the father with a statutory declaration of guardianship or if it is not provided by the court, or if she does not provide a statutory declaration, then the father has to go to court to achieve his guardianship rights. This Bill only provides that those fathers who have been living with the mother have rights. My amendments would provide significant safeguards and reassurances in the minority of cases where it is not in the child's best interests for the father to be involved.
I have put a lot of thought and consideration into this issue, which I first raised in the House two years ago. I have been consulting with groups such as Treoir, other lone parent groups and other interest groups in an effort to present a position that is reasonable. I have examined the situation in other countries such as in the UK. I have read the recommendations of the Law Reform Commission, which included an automatic presumption of guardianship for all unmarried fathers. The wording of the amendment was carefully drafted by a family law expert with a view to making sure that it provides all the adequate safeguards and it is robustly worded. I would appreciate the Minister's comments on the amendment before I decide whether to press the amendment.
I commend and support Senator Power's amendments.It is an interesting set of amendments which would provide a framework for the rebuttal of a presumption of guardianship rights. In 1982 and again in 2010 the Law Reform Commission recommended two guiding principles for automatic guardianship - the best interests of the child and that all parents should be treated equally, regardless of gender or marital status - linked with compulsory joint registration of the birth of the child. I believe that with these amendments Senator Averil Power strives to strike a balance, while also providing safeguards. They would also send a clear signal that all fathers were equally responsible for their children. I commend her for submitting them.
I am happy to support this amendment which has been well thought out. The arguments have been well made made by Senators Averil Power and Jillian van Turnhout. I would probably have gone a step further in regard to section (4B)(b) which states in reference to the father: "the father has been registered in a register of births as father of the child". I would have included the words "or has established fatherhood through DNA testing". The reason for this is that sometimes the couple have parted company, perhaps months in advance of the birth, and for some reason the mother does not wish to have the father's name on the birth certificate. Therefore, there should be another means of establishing fatherhood.
The point about fathers is well made. There should be equality between fathers and mothers, but there is not. Recently I visited a household in which a youngster was visiting his grandparents and father and I could see the relationship between them was good. The father then took the child back to his mother. It is good that these parents can share parenting. Many parents see the sense in putting the differences between them aside so as to act in the best interests of the child. The State should facilitate and encourage this. I see no reason the Minister should object to the amendment, but I presume, like all other amendments, it will not be accepted, which tells its own story.
Getting back to the issue of fatherhood, will the Minister comment on the situation where a mother leaves her husband or cohabiting male partner with the children of that relationship and enters into another relationship, be it with another woman or man. As I read the Bill, the biological father who may be attached to the children and they to him will become a secondary person in the eyes of the legislation if the others apply to parent the children. This may well happen. I saw a programme on television recently on which a lady raised the spectre of a same-sex couple in Boston, where when the couple had broken up and the natural mother of the child had failed to gain custody of the child. Instead, custody was given to the non-biological parent.
We are opening a Pandora's box without taking any of the normal precautionary measures other countries have taken. It is an experiment in social re-engineering which could and will have serious consequences for some children. I hope that through these amendments the rights of fathers would be respected and that the Minister is prepared to accept them. However, I am not holding my breath.
Amendments Nos. 68 and 69 would set out a rebuttable presumption of guardianship in favour of a non-marital father. I thank Senator Averil Power for proposing these interesting and thought-provoking provisions. I fully understand her rationale for doing so and know that she is keen to provide an early legislative response to address the issues of non-marital fathers. Despite this, I am not in a position to accept the amendments because we need to consider the position further and carry out wider consultation with key organisations and professionals with expertise on this issue.
I have a great deal of sympathy for the position taken. Depending on the outcome of the planned review and discussions with other Departments, child care professionals and representative organisations, these proposals could well form part of a useful template for further legislation. However, even if the outcome of these further consultations and policy analysis, to which I have made a clear commitment, is strongly in favour of developing a presumption in favour of guardianship, the proposals will need some further development and refinement. For example, while the father's guardianship may be rebutted by means of a statutory declaration, it is not clear to whom the statutory declaration must be given in order to activate the rebuttal or what evidence must accompany it. Nor is it clear if a father who does not wish to be involved can himself repudiate guardianship. The current mechanisms for statutory declarations enable the father to acquire guardianship precisely because both parents consent. The initiative I brought forward on Report Stage in the Dáil will enable that process to be followed easily when the parents register the birth of the child.
I am also concerned that the proposal would put the onus on a mother, potentially in a vulnerable position, to go through the court system to prevent the presumption from taking effect. Pending the introduction of the family court, a 60 day time limit may be very short for a mother in which to rebut the presumption of the father's guardianship through the courts. Also, the proposal is not linked with the timeframe for birth registration of three months. Depending on the results of the review and subject to clarifying this issue further, the amendments could be a valuable model on which to base future legislation. I am aware of the time the Senator has spent on and her interest in this issue, but I am not in a position to accept the amendments at this time. However, I am committed to further developments in this area and a stakeholder meeting on the issues involved. I hope the Senator will get involved in this because there is work to be done. The presumption of guardianship could be developed, but there is significant work to be done on it. When I examined this area, it was clear that there were issues that needed to be resolved before I could proceed with this issue in the legislation.
Amendment No. 70 would set out a presumption that it was in the best interests of a child for his or her parents to be appointed as a guardian. I have some brief comments to make on that issue. First, there is a de factopresumption by the courts that a father applying for guardianship will be so appointed. The most recent figures available from the District Court, for example, indicate that it refused to appoint a father as a guardian in only approximately 3% of cases. That is a low figure. Second, the best interest principle which I am setting out for the first time in legislation for the courts to consider includes the benefits for the child in having a meaningful, ongoing relationship with each of his or her parents. This will, naturally, include the parents concerned having the rights and responsibilities to exercise their parental roles fully. However, it may be going too far to set out a rebuttable presumption that parent guardianship is in the child's best interests. Obviously, it could fetter the court's ability to impose a proper best interest test and restrict its capacity to take into account the views of the child in the matter. Again, I sympathise with the spirit of the Senator's proposal, but there is a risk of unintended consequences in the small minority of cases in which the court decides, presumably for good and cogent reasons, that guardianship is not in the child's best interests and, perhaps more importantly, for the court's ability to consider the child's own views in the matter.
I thank the Minister for her response. The key point is that it would be a rebuttable presumption. This means that the court, if satisfied that it was not in the best interests of the child, could displace the presumption. I do not accept that my amendment would make things difficult for the court because it would be able to weigh up the varying evidence and decide what was in the child's best interests. We deliberately did not provide for automatic rights, but I know that an alternative amendment brought forward elsewhere would provide for automatic rights for all unmarried fathers. As I said, I accept that there are concerns about the minority of cases in which guardianship would not be in the child's best interests. I also note the Minister's comments in regard to 97% of applications being approved, which makes the case for having a system like this in that we should not force 97% of fathers to go to court to establish guardianship rights in respect of their children in order to deal with the 3% of cases where such an application will not be approved. It is unfair and wrong for the fathers and their children. We need to keep family law disputes out of the courts in so far as possible and to try to maintain relationships as amicably as possible. It is distressing for all involved when a situation ends up in court and it is being fought over in a contentious way.
That is the spirit behind the amendments. I welcome the Minister's openness about looking at this issue and the fact she gave such a detailed reply. I also welcome her commitment to consult with stakeholders in respect of it and her offer that I would be involved in that. I would very much like to work on this issue with the Minister. It is an area of interest to me.
I will not press the amendment but I am a little concerned about the delay in this area already because, as has been pointed out, there have been two Law Reform Commission reports. However, I can tell from the Minister's reply that she has a genuine interest in it. On that basis, I will not press the amendment. I would like to work with the Minister on moving this area forward. It is long past time that we did right by unmarried fathers and their children.
On a point of order, once amendments have been spoken to, are they not the property of the House? They are good amendments and I would like to press amendment No. 69. This happened previously so there is a precedent. I object to the withdrawal of amendment No. 69.
Amendment No. 71, in the names of Senator Cullinane, Ó Clochartaigh and others, arises out of committee proceedings. Amendments Nos. 71 to 74, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 71:
I think I know the answer to the amendment but I will move it anyway. We are pushing further here than Senator Power. I agree with the sentiment of what Senator Power said in that we were looking for an almost automatic presumption of the father being the guardian. We believe all fathers should be granted automatic guardianship at the moment of birth. As I said previously, in some cases, cohabitation is not possible as sometimes mothers are still living with their parents and it is not always appropriate or possible for the fathers to live there also. That is often the case with teenage or unplanned pregnancies but it does not always mean the father is, in any way, shirking responsibilities or not stepping up to the plate. The circumstances are not in his favour. I mention the case of fathers who are working away from home, perhaps abroad, who simply are not in a financial position to support the child. Our amendments seek to go further than Senator Power's but I have a good sense of the answer we will get.
In page 43, to delete lines 14 to 18 and substitute the following:“6B.(1) A man who is, under section 5(1)(b) of the Act of 2015, the parent of the child, shall be a guardian of the child.”.
I think the Senator understands the situation. I had taken a number of initiatives to make it easier for non-marital fathers to become guardians and the changes and the information campaign to which we are committed in regard to the statutory declaration will make quite a difference. The Senator has just heard my reply to Senator Power and I thank her for the approach she has taken in regard to this issue because we can do the kind of work that is necessary to establish the views of the various groups and how we can best draft this. When Deputies spoke about this in the Dáil – I think the point was made in the Seanad also - the majority said we should go for automatic guardianship but equally most said that there are exceptions and it is in the drafting of those exceptions and in trying to figure out the detail that a job of work remains to be done, which I will do.
Amendment No. 75, in the names of Senator Cullinane, Ó Clochartaigh and others, arises out of committee proceedings. Amendments Nos. 75 and 77 are related may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 75:
This is a about what we discussed on Committee Stage. We are calling on the Minister to establish and maintain a register to be known as the central register for statutory declarations for joint guardianship, the purpose of which is to provide protection for the statutory declaration documents which grant guardianship rights to unmarried fathers in respect of their children.
In page 44, before line 1, to insert the following:“Central Register for Statutory Declarations for Joint Guardianship
6C.The Minister shall cause to be established and maintained a register to be known as the Central Register for Statutory Declarations for Joint Guardianship, the purpose of which is to provide protection for the statutory declaration documents which grant guardianship rights to unmarried fathers in respect of their children.”.
We also call on the Minister to establish and maintain a register to be known as the national register of joint guardianship statutory agreements and for the Minister shall make an entry in the register in respect of each joint guardianship agreement issued. The Minister may prescribe the manner in which the joint guardianship agreements referred to are recorded and the register of joint guardianship agreements shall also record registration of guardianship for fathers who meet the cohabitation criteria.
As we discussed previously, there is not a central register for such documents, meaning that if a document is mislaid, then the father has no proof of his guardianship. We outlined the reasons for this on Committee Stage but did not see amendments forthcoming from the Government and that is why we resubmitted these amendments.
I second the amendment. I tabled an amendment with the same intent. I feel strongly about this area and I welcome the amendments the Minister introduced on Report Stage, including the new section 97. It was an issue several of us, including Senator Power and I, brought up when we met the Minister in the consultation about the Bill, so I recognise that she was going some way to try to address our concerns.
This whole area of law is blighted by lack of awareness and understanding among unmarried mothers and fathers about the legal ramifications, rights and responsibilities flowing from the birth of their child. Section 97 will act as an important signpost and mechanism to raise awareness. However, in practice, I fear the new provisions lack the teeth in the absence of a national central register for guardianship agreements. The statutory declaration may go missing. All of us at some time have lost a vital document, whether a passport or a driving licence, and that is without any fractious period of time in our lives, such as the end of a relationship.
I welcome that the Bill provides for a national donor conceived persons register to safeguard the child's right to identity. I would like to see a national register of joint guardianship statutory agreements to ensure the rights of the child to have a meaningful relationship with both parents and to uphold the father's right to family and private life under Article 8 of the European Court of Human Rights, which is recognised in a number of European Court of Human Rights cases as existing between a man and his minor child. Even where there is no evidence that the man ever cohabited with the child's mother, parental rights should be enjoyed. The law should presume that the majority of unmarried parents are reasonable, responsible and law-abiding citizens and where they are not, this should be addressed through relevant legislation.
In preparing this amendment, I asked Treoir if, when working with unmarried fathers, the loss or the withholding of a statutory declaration was an issue. I stress that because there are many cases where the partner will have the statutory declaration.I will forward these cases to the Minister because they are real cases that have happened in recent months, where a spouse has gone to another country with the statutory declaration which means the father cannot go to court or seek redress because he does not have this one piece of paper. There are also cases where the mother is on holidays, the relationship is good, the child has an accident and needs dental surgery and the dental hospital asks for a copy of the statutory declaration but the father does not have it. The father then cannot prove he is the father of the child. Even when there is a good relationship events can happen so it would be very important to have a central register.
It is a very significant document. I understood the Minister’s point on Committee Stage about putting in a compulsion but it is more important to make it compulsory to hold these documents centrally. We have all lost vital documents and that is without fractious break-ups in our lives. From a children’s rights perspective this is very important. We can have a database for every square inch of land in the country and I would like to ensure we have one for statutory declarations to ensure that if necessary a father can have his rights upheld and that it does not depend on one piece of paper. I misplace pieces of paper and I am sure we all do at times.
As Senator van Turnhout says, we all agree in principle with the need to ensure registration of statutory declarations but I want to commend the Minister on her very clearly stated intention on Second and Committee Stages to seek to develop the pilot project to establish the voluntary repository and then decide whether to proceed to establish a national repository. This is a big undertaking. While we all agree on it in principle, the question is how to proceed with it. The Minister is right in saying there is an appropriate way to do this. Before we bring in legislation, we should consider how best to do this to ensure it is not unduly onerous, and raise awareness. This debate is important because it has raised awareness among many people of the statutory declaration and the need to sign one in order for a father to have guardianship in a situation where the couple is not married. I am glad we have the opportunity to debate this and I commend the Minister on proceeding with it in the way she has outlined.
I support these amendments. I pushed a similar amendment on Committee Stage. It is a very serious area and for the effort involved in setting up a register the benefits would be immense, particularly in the situations Senator van Turnhout outlined. Perhaps the Minister might change her mind and go a bit further than a pilot on the basis of the discussion we had last week. This should be a priority.
It is striking how many people have raised this issue in the debate in the Dáil and here, although it has never been done before and has not been the subject of any public debate. I have begun to examine it and staff in the Department have been considering the range of issues that would be involved. It is a big job to establish this. It will take work because there are issues involving security, data protection, data management and financial implications. We have to invent how this will be done. I decided because of the interest in it, and following the debate in the Dáil, to establish a pilot project as soon as possible to examine the issue and take it forward. We will invite parents who have made statutory declarations to deposit copies of the declaration with an administratively operated repository as an additional security mechanism. I will report on the outcome of that and we can examine how best to take it forward.
I remind Senators that section 6F of the Guardianship of Infants Act 1964 as inserted by section 49 of the Bill in cases of dispute between the parents as to the duration of cohabitation provides a remedy allowing either of them to apply to a court for a declaration that the father is or is not a guardian. I will take the spirit of what is intended behind Senator van Turnhout’s and Senator Ó Clochartaigh’s amendments and the one Senator Power tabled on Committee Stage and using the core principle behind them will begin to work on that.
I move amendment No. 79:
We spoke at length on Friday about whether in the course of an assessment for an adoption placement the birth mother’s wish to nominate her family type or preference for her child would be acknowledged and noted in the child’s placement. I was largely happy with what the Minister said then but it struck me over the weekend that I had not asked her whether, when this Bill passes into law and after the referendum, when the marriage equality legislation is passed, a birth mother will be counselled and encouraged to nominate her preference for the family type in the same way and whether her wishes will be met as the advocate for the child.
In page 81, between lines 15 and 16, to insert the following:“Amendment of section 14 of Principal Act106. Section 14 of the Principal Act is amended by the insertion of the following paragraph
after paragraph (c):“(d) request from the birth mother or guardian her or his preference, if any, for the category of applicant as outlined under section 33(1)(a) (i), 33(1)(a)(i)(ia), 33(1)(a)(i)(ib), 33(1)(a)(ii) and 33(1)(a)(iii) into which the child shall be placed.”.”.
I have had a further discussion with the Adoption Authority on the points the Senator made since we discussed this here last week. It is absolutely the practice that the mother’s wishes in respect of the adoptive family are taken fully into account. We do not put into the statute that the mother decides because under the Hague Convention it is the central authority which makes the statutory final decision but the absolute practice is to match the family to the birth mother’s preference and that will continue to be the situation.
I move amendment No. 83:
In page 84, between lines 20 and 21, to insert the following:“114. The Principal Act is amended by the insertion of the following section after section 32:“Requirement of informed consent in respect of certain applicants
32A. Notwithstanding section 20, the Authority shall not make an adoption order in favour of an applicant or applicants, as the case may be, other than an applicant or applicants referred to in section 33(1)(a)(i) or section 33(1)(a)(ii), unless every person whose consent to the making of the adoption order is necessary under section 26 knows, when consenting, that the applicant or applicants, as the case may be, are not of the kind referred to in the said subparagraphs of section 33(1)(a).”.”.
I move amendment No. 84:
The principles are all interrelated. The current provision in adoption legislation is such as to give preference to the marital family or widow, widower or single person who is a relation of the child. There is a particular reason this is the current legal position. The presence of widows and widowers in the first category is based on a certain understanding of marriage that underlay the legislation in that the widow or widower came within the institution of marriage for the purposes of understanding the constitutional family and adoption law. It is for this reason that one finds, in the first category of prospective adopters or people who may without qualification apply to adopt under existing legislation, married couples, widows, widowers or single persons who are related to the child who is the proposed subject of the adoption order. However, the law provides that in particular circumstances a single person may adopt. It is worth remembering that this provision was included when Dr. O'Hanlon was the relevant Minister and that part of the background to extending the right to apply to adopt was the phenomenon of the Romanian orphanages and single people who, in some cases, on having travelled abroad to do some very laudable and creditable work in such orphanages wanted to apply to adopt. The law was enlarged to meet that aspiration by providing that such persons could apply to adopt as single persons. The existing circumstances best represent the solicitude to vindicate the child's best interests, which is to say that, all things being equal, it is better that an application to adopt be made by a married couple, although there may be exceptions where a single person related to the child, or a widow or widower, can apply. There may be other particular circumstances where the law contemplates single persons not related to the child might be eligible to adopt.
In page 84, line 24, to delete “subparagraphs” and substitute “subparagraph”.
It seems that what is in law is a good model for framing law on children's best interests, while at the same time recognising that life is complicated and that different circumstances require different responses and solutions. Existing adoption law has a general category under which one may automatically apply to adopt and a second in which there are particular circumstances that justify the application to adopt. We are talking about establishing eligibility. There is, of course, a set of additional hurdles to be crossed when determining suitability to adopt and that is where the relevant officials and experts will do all that is necessary to ensure it is in the child's best interests that he or she be adopted by a certain individual or couple.
The Bill has a one-size-fits-all policy or perhaps, as I put it earlier, an all-sizes-fit-one policy. This is to say the law seems to be embarrassed about making distinctions. It is caught by the Minister's repeated desire in these debates to avoid any hierarchy of families. However, if we are to put children's best interests front and centre, we must be alert to the fact that, all being equal, certain circumstances are more likely to secure children's best interests than others and that it is better that a child have a father and a mother. In addition, it is better to have this principle regarded as an essential value to be considered by all those whose job it is to secure a child's best interests in the case of adoption. We all know that there are cases in life where the two members of a same-sex couple are parenting the biological child or one or the other. We all know that in these circumstances the child's best interests lie in all of these relationships being respected and the child's needs being vindicated. This legalisation, particularly its provisions on guardianship, seeks to secure the child's best interests in these circumstances. However, the question of what ought to be in the mind of the adoption authorities when figuring out where a child's best interests lie in making adoption decisions remains.
I was struck by an exchange on "Morning Ireland" in late January concerning the Minister but in which she did not take part. Cathal Mac Coille of RTE was interviewing Dr. Geoffrey Shannon who was asked whether a parent putting a child up for adoption could elect to or signal a preference to have the child placed with a father and a mother. I am paraphrasing and obviously working from memory. Dr. Shannon was not in a position to say if the law would recognise such a right. If I recall correctly, he said all of these matters would be determined having regard to a child's best interests. All that is rather circular because it begs the question as to what constitutes a child's best interests and who determines them. What constitutes a child's best interests will obviously vary according to circumstances, but we are back to the core question, namely, whether, all being equal, it should be regarded as a fundamental good where an adoption decision must be made that the child have a father and a mother in his or her life unless there are compelling reasons to the contrary. The Minister knows my position is that it is such a fundamental good that ought to be considered. The compelling reason that might dictate otherwise is along the lines I described. It concerns where one of the biological parents has custody of the child and is in a same-sex relationship, perhaps after the break-up of a previous relationship. However, it is difficult to conceive of many circumstances in which it could truly be said a child's best interests somehow exclude the necessity of seeking for him or her the experience of a father and a mother in his or her life. There has been a considerable amount of public debate on the proposed referendum but also on this legislation. People find very difficult to understand why there is this studied neutrality on the part of Government and senior policy makers about whether a child deserves to have a father and a mother. I have put it in the negative in the sense that while there are situations in life where a child cannot be brought up by their own father and mother or where it is not possible to provide that the child has a father and mother experience, it should never come about as a result of a decision or of a policy of the State ort as a result of a particular decision of adults backed up by the State. Those are the premises that have underlined what I have had to say about donor assisted human reproduction but they also underline my criticism of the lack of a stated preference. In the context of adoption, a child will have a father and a mother and adoption authorities rightly have to undergo many requirements, where everything is looked into from parents' income to the quality of their relationship. Some prospective adopters have found those questions intrusive but they are necessary because they are designed to establish whether the child's best interests can be secured in those circumstances. In this context it seems bizarre that something as fundamental as the aspiration that a child would have the complementary experience of a father and a mother is not stated upfront in the legislation in the way it has always been by implication in the way our adoption law has been written up to now.
What we have here is a certain trumping by ideology over what many people have always understood to be common sense. There is a great compassion, realism and pragmatism in Irish people and they know that parents do their best, often heroically, in all sorts of situations. Most people in Ireland have always wanted to support that and our instincts about that have informed the collective horror at the failures of the past in regard to the institutional care of children in particular, but that same general sense that children ought to come first in our society is at work in some of the criticisms I have heard and that have been made about the Bill.
These amendments seek to restore not an absolutist position but a social preference and specifically in the making of an adoption order, that in order for the person to consent to the making of an adoption order the birth mother, in particular, would know when consenting that it is not proposed to place the child either with a married couple or with an individual who was related to the child or a widow or widower, in other words the older automatic category. It is not important or central to the amendment I have proposed whether they would know that it was proposed to place a child either with civil partners or with a cohabiting couple, that is not the point. The point is whether the person placing the adoption has the right to secure, by making it conditional on their consent, that the child would be placed in time honoured fashion with a father and a mother.
The case has been made by some that one can already do this in certain areas of the law. For example, the law provides in certain cases that parents placing a child for adoption may object if the religion of the proposed adoptive parents is not the same as their own and that probably recognises the social sensitivity around different people's faith commitments and so forth. Surely, even more important would be the basic aspiration that a parent might have that their child would be placed with a father and a mother. I think that decision should be left to those parents. That is a relevant issue and one that goes to their consent. It should not be regarded as something that somehow breaches some kind of equality principle if they were left to make that consent. There is a higher value here which has to do with the right of a child to be brought up by a father and a mother unless the best interests of that child can be shown to be otherwise.
I second the amendment.
This echoes everything I have said on Second and Committee Stages, that is, the right a child has to its mother and father. I have quoted various people on that issue. What prompted me to table amendment No. 94 is that it is well recognised, even though the Minister is inclined to deny it, that a child does have a right - we talk about rights of identity but it is more than identity - to either their own biological mother and father or, where that is not possible as in the case of adoption, that we replicate that with what they would have aspired to, other than for some reason it was not possible. I fully accept that sometimes it is difficult for, say, a single mother to place a child for adoption and that there may be reasons behind that which we must fully respect. Very few mothers would do that lightly. As we have seen, many mothers subsequently have come back many decades later to try to make contact with their natural child and the State has been very facilitating and very critical of the fact that in the past provision was not made for those ties to be maintained and preserved.
However, the State does not appear to have reservations about going in the opposite direction in respect of some of what is being proposed in the Bill. I have already put on record a well-known English singer who is in a gay relationship who said it will break his son's heart to realise he has not got a mother. We know from many who have gone through that trauma the efforts they will make subsequently to reach out to their mothers and we know how heart-rending are those reunions. In general, it transpires that the natural bond, after many decades, is somehow rebuilt. I am sure many regret and, in other instances, this House would regret the fact that the bonds were ever severed and would be highly critical of those who might have played some part in facilitating that. Often times it was families and it may have been institutions. It was a case of the State to some extent facilitating and, perhaps, letting down those children.
I mentioned earlier the case of a lady raised by a lesbian couple whom she is very effusive in complimenting on their commitment to her and the life she had with them but subsequently came to recognise the void that was created in her life. She added, "My father's absence created a huge hole in me and I ached every day for a dad". We are creating legislation which will have many such children echoing those sentiments in the years to come. Why would we do that, I ask, if the Bill is really about the best interest of the child?
My amendments are intended to ensure that couples may be eligible to adopt jointly. It is then the function of Tusla to carry out a suitability assessment. Significant information is given to the birth mother and, rightly, huge weight is given to her views. The birth mother, quite rightly, already has a significant input into the selection of a potential adopter. I am informed by the Adoption Authority that the birth mother, or any person whose consent to a child's adoption is required, would be told about the gender and civil status of any proposed adopters before deciding whether or not to consent to the proposed adoption, and there would be a discussion about this. Further, there is a period during which the birth mother can withdraw consent.
We have constructed the approach to adoption in the Bill in a very careful way so that couples are equally eligible. This does not mean that couples are equally suitable. That is a question for the assessment. The eligibility is equal but a suitability assessment has to be done. This will involve everything which already happens in an adoption assessment. There are no proposals in this legislation to change how the adoption assessment is carried out. The Bill does not alter our careful system of assessments for suitability, which is in line with the Hague Convention. It simply expands the pool of couples eligible to adopt. Many of the adoptions will be in-family adoptions. For the small number of stranger adoptions, if one likes, I am continuing the current policy, which is that adoption is a child welfare mechanism. It is a child welfare measure. There is no studied neutrality on the point. Adoption is a child welfare mechanism and will continue to be a child welfare mechanism. The Bill does nothing to change this position. There is no neutrality. The position is very clear: adoption is a child welfare mechanism.
It is clear that what the Senators are proposing is a hierarchy of adopters in which some people would be considered more suitable than other people.
At present, as the Senator knows, a married couple and single people can adopt. In the Bill, we are allowing cohabiting couples to adopt. This is different, but the same principles around assessment continue to be in place. There is no change to that.
Many couples who wish to adopt find the suitability tests carried out by Tusla very intrusive, and with justification. Their strengths and weaknesses are assessed and everything involved in an adoption assessment is done because we want to answer the question of what is in the best interests of the child. This is the question that is put. It does not concern the couple's status but their parenting capacity. This is at the centre of the approach in the Bill when examining all of these issues, whether it is guardianship, access, custody or adoption. The test is what is in the best interests of the child. We are broadening the pool of those who are eligible to adopt, but the mechanisms by which the assessment is done and suitability considered remain the same.
I thank the Minister for her response but I do not understand the logic of her position. On the one hand she deplores a hierarchy of families, while on the other hand she says the status quodoes not involve such a hierarchy. She attempts to reconcile the two positions by saying that she is widening the pool of eligibility to include cohabiting couples, but she is doing much more than that. She is widening the pool of eligibility to include civil partners as well. At the moment, single people may adopt "in the particular circumstances". It is particular circumstances that apply where a single person may adopt. Why does the Minister not maintain that "in the particular circumstances" a cohabiting couple may apply or that "in the particular circumstances" two civil partners may apply?
The Minister is not just trying to widen the pool of eligibility. She is going further than that. She is going down an ideological route, because she is saying that no matter who is applying, it is not a question of particular circumstances; anyone may apply. She then subjects this position to the general expectation that each case will be adjudged according to the child's best interests. This includes some really important considerations, including the fundamental question of whether the child's best interests automatically or almost always would require the child to have the experience of a father and a mother in his or her life. This is a rather big issue to leave to unknown officials to determine.
If a couple apply to adopt and they have no previous children, it is entirely appropriate that the issues the Minister described about parenting and their suitability would be considered. In this legislation, the Government is unable to propose the requirement that an essential issue to be determined in securing the child's best interest would, save in exceptional circumstances, be that the couple be in a position to provide complementary parenting, namely a father-and-mother experience for the child. The Minister seems to suggest, or seems to want to suggest, that in determining the best interests of a child or in assessing a particular couple for their suitability to adopt, the personnel dealing with the matter might decide in some cases that the fact that it is a same-sex couple makes them less suitable, but in other cases they would be more suitable. The Minister has the picking of the Adoption Board, if I am not mistaken. Is she suggesting that such a decision would be legitimate? Is this something that comes down to the personal convictions or views on family life of the personnel dealing with the matter? It is entirely irresponsible not to determine this question where it ought to be determined, which is in the legislation. Whether the experience of having a father and a mother is something so fundamental that it should be sought out wherever possible and only disregarded in exceptional circumstances is a core question. Is the Minister saying that there will be cases where it would be legitimate for officials determining a child's best interests to say, all other things being equal, that they will give preference to a father-mother couple and that that is something they should look out for - something for which they should give extra marks, to use a crude expression? Is it the Minister's view that this would be acceptable?
I move amendment No. 85:
In page 84, to delete lines 25 and 26 and substitute the following:“ “(ia) the applicants are civil partners of each other who are living together and satisfy the Authority that, in the particular circumstances, the adoption is desirable and in the best interests of the child,”.
As fewer than five Members have risen I declare the question is defeated. In accordance with Standing Order 61 the name of the Senator dissenting will be recorded in the Official Report and in the Journal of the Proceedings of the Seanad.
I move amendment No. 93:
In page 85, between lines 36 and 37, to insert the following:“(f) in subsection (7), by the substitution of “applicants referred to in subsection (1) (a)(ia) or an applicant referred to in subsection (1)(a)(iii)” for “an applicant referred to in subsection (1)(a)(iii)”.”.
I move amendment No. 94:
In page 85, between lines 36 and 37, to insert the following:“(f) by inserting after subsection (7) the following subsection:“(8) In making an order the Authority must act in the best interest of the child (having a mother and a father) and will give preference, in the first instance to married male-female couples, subject to paragraphs (a), (b), (c) and (d) of section 34.”.”.
As fewer than five Senators have risen the question is declared carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
I move amendment No. 122:
In page 113, after line 18, to insert the following:“SCHEDULESection 27PART 1The operator of a DAHR facility shall not use or permit to be used in a DAHR procedure a gamete or an embryo provided by a donor where the donor of that gamete or embryo, as the case may be, and the intending parent or any one of the intending parents, as the case may be, or the spouse, civil partner or cohabitant, as the case may be, of the intending parent are within the prohibited degrees of relationship as set out below. Relationships should be construed as including relationships in the half-blood (e.g. sibling includes a sibling where there is only one parent in common, etc.), and all the relationships include relationships and former relationships by adoption.
Prohibited Degrees of Relationship between Donor and Intending Parent
Prohibited degrees of relationship with respect to the intending parent
Donor is a parent of the intending parent
Donor is a brother or sister of the intending parent.
Donor is a son or daughter of the intending parent.
Donor is a grandson or granddaughter of the intending parent.
Donor is a brother or sister of a parent of the intending parent.
Donor is a son or daughter of a brother or sister of the intending parent.PART 2The operator of a DAHR facility shall not use or permit to be used in a DAHR procedure a gamete or an embryo provided by a donor where the donor of that gamete or embryo, as the case may be, and the spouse, civil partner or cohabitant, as the case may be, of the intending parent or any one of the intending parents, as the case may be, are within the prohibited degrees of relationship as set out below. Relationships should be construed as including relationships in the half-blood (e.g. sibling includes a sibling where there is only one parent in common, etc.), and all the relationships include relationships and former relationships by adoption.
Prohibited Degrees of Relationship between Donor and Spouse, Civil Partner or Cohabitant of Intending Parent
Prohibited degrees of relationship with respect to the intending parent
Donor is a parent of the spouse, civil partner or cohabitant of the intending parent.
Donor is a brother or sister of the spouse, civil partner or cohabitant of the intending parent.
Donor is a son or daughter of the spouse, civil partner or cohabitant of the intending parent.
Donor is a grandson or granddaughter of the spouse, civil partner or cohabitant of the intending parent.
Donor is a brother or sister of a parent of the spouse, civil partner or cohabitant of the intending parent.
Donor is a son or daughter of a brother or sister of the spouse, civil partner or cohabitant of the intending parent.”.
- Ivana Bacik
- Sean Barrett
- Terry Brennan
- Colm Burke
- Gerard Craughwell
- John Crown
- Maurice Cummins
- Imelda Henry
- Caít Keane
- Marie Moloney
- Tony Mulcahy
- Michael Mullins
- Hildegarde Naughton
- Trevor Ó Clochartaigh
- Susan O'Keeffe
- Pat O'Neill
- Averil Power
- Jillian van Turnhout
- Mary White
- Katherine Zappone