Thursday, 18 April 2019
Civil Registration Bill 2019: Second Stage
It is a pleasure to be in the Seanad. Before proceeding, I express my genuine appreciation to the House for facilitating an early consideration of the Bill. I have just been given the delightful news that Committee and Report Stage will be facilitated next week.
It will be at the Seanad's earliest convenience I am sure. My main reason for seeking quick passage of this legislation through the Oireachtas is to expedite commencement of existing legislation that provides for the registration of donor-assisted births. This issue particularly affects female same-sex couples who wish to register the particulars of both partners in the relationship as parents in the register of births. This will allow both of them to have their particulars displayed on birth certificates and will affirm parental rights for each partner in practical day-to-day matters, such as passport applications, school enrolment, interaction with medical practitioners and GPs, and other situations where demonstration of parental relationships may be required. I know many Members of the Oireachtas want to see a speedy resolution to this. We have all met many of the couples affected and I can assure the House that I absolutely want this resolved as quickly as possible. As I stated in the Dáil - it is worth saying again - I am thankful we are living in a changing society, with a more diverse range of family formation than in the relatively recent past. It is important that we reflect this in our laws and how we recognise family units. For my part, I fully intend for civil registration legislation to keep pace with the evolving nature of our society and with how this diversity is provided for in legislation generally. In this way, we can absolutely ensure that we treat all our citizens equally.
The Bill makes progress in achieving this through technical amendments that will facilitate commencement of sections in Part 9 of the Children and Family Relationships Act 2015. This will make possible registration and re-registration of donor-assisted births that will record the particulars of both parents in a female same-sex relationship. As many Members will be aware, bringing these provisions into operation also depends on commencement of Parts 2 and 3 of the Children and Family Relationships Act 2015, which include provisions for determination of parentage of donor-conceived children. This is the responsibility of my colleague, the Minister for Health, who is working to commence these Parts before the summer recess.
The Bill also amends existing civil registration legislation to bring it into line with current legislation governing presumption of paternity. This will make it less onerous on a woman to rebut the automatic presumption of paternity of her estranged husband in the birth registration process. It is another rights-based issue that I want to see addressed quickly. I want to avoid a position where there is a need for contact with the woman's estranged husband where the separation may have been acrimonious or may even have involved domestic violence.
I will move on now to setting out the provisions of the individual sections of the Bill. Section 1 outlines the definitions of certain terms used throughout the Act. Section 2 amends the definition of the Act of 2015 in section 2 of the Act of 2004. This amendment will facilitate commencement of legislation that provides for registration and re-registration of births of donor-conceived children. Section 3 makes technical amendments to section 19A of the Act of 2004. This will facilitate commencement of legislation that provides for registration of births of donor-conceived children. Section 4 brings civil registration legislation into line with current legislation governing presumption of paternity and makes it less onerous on a mother to rebut automatic presumption of paternity of her husband in the birth registration process. Section 5 makes technical amendments to section 23B of the Act of 2004. This will facilitate commencement of legislation that provides for re-registration of births of donor-conceived children.
Section 6 provides for the inclusion of a family member as a qualified informant in the registration of a death where a coroner is involved. This will allow the family of the deceased to have a greater role in the registration process. This should result in registration of a more complete set of particulars in some cases. Section 7 provides for the inclusion of the forename and birth surname of a "parent", where a person born following donor-assisted human reproduction dies abroad and it is sought to have the death recorded on the record of deaths abroad when that is operationalised. This follows as a consequence to the addition of details of "parent" to the required particulars for registration of a birth.
Section 8 provides that records of births, deaths and marriages may be shared by the General Register Office with a body under the aegis of the Minister for Culture, Heritage and the Gaeltacht. Bringing into operation of these provisions will require extensive consultation between my own officials and their colleagues in that Department. Section 9 provides for the application of fees payable to the Minister for Culture, Heritage and the Gaeltacht in respect of any performance by that Minister of functions carried out under the provisions amended by section 8 of this Bill. This is a standard provision in most legislation.
Section 10 provides for the inclusion of details of "parent" in the required particulars to register a birth or stillbirth. This will facilitate both partners in a same-sex female relationship to have their particulars registered in the register of births. Registration of particulars of "mother" and "father" will continue to be available. However, any parent may choose to register a birth as "parent" if that is the wish. Section 10 also provides that the country of birth and the country of citizenship of a deceased person are to be added to the particulars of a death to be entered in the register of deaths. This provision, as well as providing a richer source of data in the records of deaths held by the General Register Office, also responds to the State's obligations under the relevant European Union regulation governing provision of statistical data to EUROSTAT by the Central Statistics Office.
Section 11 provides for a technical change to ensure that certain amendments in section 6(1) of the Civil Registration (Amendment) Act 2014 may apply to the registration of births where the birth occurs before the date of commencement of the section and is registered after that date. There were two amendments introduced in Dáil Éireann that have been adopted and are now included in the Bill before us. Section 12 provides that Part 9 of the Children and Family Relationships Act 2015 will come into operation by default on 6 October 2019 if not already commenced before that date. As I have already stated, we are keen as mustard to get this passed and in operation before the summer recess so we can control it. Section 13 makes a technical amendment to section 27(5) of the Children and Family Relationships Act 2015 to allow the Minister for Health to commence Parts 2 and 3, and to make regulations for a certificate to be given to parents by their fertility clinic. This certificate is required in the birth registration process. As currently enacted, section 27(5) does not make sufficient provision for details of all permitted donor-assisted procedures to be included in the certificate. The amendment will rectify this.
Section 14 provides for the Short Title, construction, collective citation and commencement of the Act.
These amendments are mainly technical in nature but it is important that we progress them quickly. We owe it to those whose lives are affected by these issues in a very real way and have been waiting - exceptionally patiently - for a considerable time to have their concerns addressed. At this stage, we need to allow them to move on and interact with society in a way that the Oireachtas intended in 2015 and in a way that most of us take for granted.
I am aware that other areas of civil registration and other issues broadly relating to provisions contained in this Bill need to be addressed, but these will need to be dealt with separately at a future date because I want to introduce the measures in this Bill as quickly as possible.
I look forward to hearing Senators' views and comments. I thank them for their co-operation.
I thank the Minister. I sense there might be considerable agreement across the House on this legislation. In her opening statement the Minister articulated many of the points. I hope other Members will not repeat everything she said and just make a few comments in addition.
I will call Senators Ardagh, Warfield, Butler and Norris in that order. They will all have eight minutes. While I do not want to curtail debate, that is a maximum rather than a target.
Gabhaim buíochas leis an Aire as teacht isteach inniu.
Obviously we are all ad idemon the Bill. I thank the Minister for bringing it so promptly to the House. It will resolve difficulty experienced by many donors in the LGBT community in assisted human reproduction cases. It extends the registration of a birth to include "parent" on a birth certificate. At present birth certificates issued in respect of children conceived through donor assistance born to same-sex couples only allow for the recording of the mother's details. As a consequence only the woman who gives birth to a baby can register as a parent on the child's birth certificate. These changes will facilitate the registrations and re-registrations of births of children of same-sex female couples. In addition to the current labels of mother and father on birth certificates, parents of children not conceived through donor assistance may avail of the label of "parent" should they so request.
Fianna Fáil welcomes that progress is finally being made to address issues being experienced by same-sex female parents. We are aware that other legislation is required if we are to be considered a truly inclusive society. It is essential that our laws reflect diverse family types in Ireland and that legal certainty is given to parents and children in such circumstances. We have discussed how families are changing.
I believe the heads of the assisted reproduction Bill curtail the rights of parents who would like to have a child through surrogacy. We need a proper debate on the matter. We are very restricted in our view of surrogacy at the moment. The legislation being tabled is even more restrictive and does not serve the needs of families, straight couples and same-sex couples. When a family goes down the road of surrogacy there are many difficulties in registering the parentage. The legislation we are contemplating makes this even more difficult. I do not know if this falls within the remit of the Minister for Employment Affairs and Social Protection, but there is an overlap in the registration part. We need a wider debate on the matter.
I welcome the Minister to the House. Obviously Sinn Féin will support the Bill. While it is technical, it represents a series of steps on a very long road for equal parental rights for LGBTQI couples. The failure to commence key parts of the Children and Family Relationships Act is probably the issue I have discussed most in my short time in this House, mainly because it is one of the most pressing and obvious denials of LGBT rights, for which the Government is accountable.
We need to acknowledge the negligence that has allowed for families to continue on for over four years without recognition, without legal rights and without protections. It is at least disappointing and arguably shameful that successive Ministers for Justice and Equality, Health, and Employment Affairs and Social Protection have overseen those delays. I do not know if we will ever get to the bottom of why we have had so many delays. It may be down to departmental officials, not being prioritised in work programmes, different agendas or whatever. Questions should be asked about those delays.
In the intervening years we have had a referendum on civil marriage equality. We have had two amendment Bills aimed at fixing typos. We have had six missed deadlines. A seventh deadline has been set today and is on the record of this House. Arguably some people relied on these deadlines. Some took them in good faith and we passed them on in good faith. On numerous occasions I have met mothers affected. One cannot but feel for their situation as loving, dutiful and caring parents. Irrespective of the legal relationship, they have raised their children despite negligence on the part of the State.
Yesterday we held a briefing in the audiovisual room with Love Equality, the campaign for civil marriage equality in the North. There was a bit of reflection on the 2015 marriage referendum and this is one area where we have not finished the job. With families being one of the most basic consequences of marriage and one of the most primary units of society, it is amazing that we enacted such a landmark change to marriage and yet four years on we have not furnished any rights to those married couples who start to have children. Some of the most hurtful arguments in that referendum campaign were about the ability of the gays to raise children. This should have been a priority.
Having said that, the Minister, Deputy Regina Doherty, has taken on the mantle on the issue. From my experience in recent months she has pursued commencements more than any Minister I have dealt with. I know she regularly interacts with parents and people on Twitter. I keep them up-to-date on the commencement of the Act. I thank the Minister for accepting Sinn Féin's amendment. I know she sees it as possibly redundant and hopefully it will be.
I also thank LGBT Ireland for its work. Some if its representatives are in the Gallery. I thank Paula Fagan. A number of families individually campaigned on the issue. LGBT Ireland brought those families together and focused the campaign. There is an obvious respectful relationship going on there which is brilliant. We need advocates at Cabinet.
I am being attacked by a fly.
We live in a changing society that in the relatively recent past has become more diverse in its range of family formations.It is important that we reflect this in our laws and how we recognise family units. The Bill will resolve several difficulties in the registration of donor-assisted births and will be progressed as a priority. The main proposal in this Bill is to provide for registration of donor-assisted births and to make it possible for both partners in a female same-sex relationship to be registered as parents. I am delighted that the Minister is moving this matter quickly towards debate and legislation. It is a very sensitive issue and of great importance to the affected families. In common with many others here in this Chamber, I have met and spoken to many affected by this issue and I am very pleased that the Minister is bringing these changes forward as a priority to ensure that they can be introduced as soon as possible.
The Bill includes other amendments to civil registration previously agreed by the Government, including provisions that allow a mother to more easily rebut presumption of paternity of her estranged husband in registering a birth, to provide a role for a next of kin to register a death in cases involving a coroner, to allow the General Register Office, GRO, to share historical records with the National Library and National Archives and to allow the Central Statistics Office, CSO, to comply with EU regulations concerning data collected in death registrations.
I thank the Minister for all the work she has done. We owe it to the people who have been waiting for this Bill and we want them to live in our society, to be cherished in our society and to let them move on with their lives.
This Bill is very welcome and I congratulate the Minister on introducing it. My colleagues and I have received many submissions from members of the public, most of them female couples. This is a very important matter and I am glad that the Minister is addressing it. She does say that some of this depends on the introduction of Parts 2 and 3 of the Children and Family Relationships Act 2015. I note that the Minister for Health is working on that. I very much hope that this will come into play pretty rapidly. I note that section 13 makes a technical amendment to section 27(5) of the Children and Family Relationships Act 2015 that will allow the Minister for Health to commence Parts 2 and 3.
It is very important, in welcoming this Bill, to herald some of the problems that may be experienced under the Children and Family Relationships Act 2015. I would very much like the Minister to be kind enough to take this point back to the Minister for Health for his consideration. We are talking about donor-assisted human reproduction, commonly known as DAHR, and surrogacy. Unfortunately, there are several provisions in Parts 2 and 3 of the Children and Family Relationships Act 2015, once commenced, and the assisted human reproduction Bill 2017, once enacted, that will operate to treat certain children less favourably than others. These issues are not only of concern to children born to same-sex parents but to many other children who are born through DAHR and surrogacy. It is acknowledged that the children's right to identity is of primary concern and of great importance but it is important to acknowledge also that upholding the child's right to identity does not require that a donor who has no desire or intention of paying any role in the child's life should be recognised as a legal parent. This is a nonsense. If there is a donor, the material for creating the child is donated but why should that person, who has expressed no interest and does not want to be involved, be recognised as a parent? That is problem number one.
I have several recommendations, on which I have been briefed, to put before the Minister. First, when a child is conceived through non-clinical DAHR, procedures should be in place to recognise a second intended parent as a legal parent. Second, retrospective application for a declaration of parentage in cases of DAHR under section 20 of the Children and Family Relationships Act 2015 should be possible where a known donor was used. Third, to ensure that the intended parent is recognised as a legal parent, the second intended parent, in cases where she provides her egg to enable the conception of the child, the words "unless the donor of the gamete or embryo is the spouse, civil partner or cohabitant of the mother" should be added to all sections of the Children and Family Relationships Act 2015 that currently provide that a donor of a gamete or embryo used in a DAHR procedure is not the parent of the child born as a result of that procedure. The Government should consider possibilities for recognising DAHR conducted abroad after Parts 2 and 3 of the Act are commenced because that is another area which is still grey. Provisions should be enacted to retrospectively recognise the legal parentage of children born through surrogacy before the assisted human reproduction Bill is enacted.
The assisted human reproduction Bill should provide recognition of the legal parentage of children conceived through surrogacy conducted outside the State after the assisted human reproduction Bill is enacted. Pre-conception court orders should be provided for in the assisted human reproduction Bill to provide parental approval as a surrogacy arrangement and to determine the parentage of the child before conception takes place with no requirement for a parental order to be obtained after the birth of the child. Some people suggest that adoption is a solution here. I do not accept that at all. Adoption was not designed to be used in cases of assisted human reproduction or surrogacy and does not accurately reflect the reality of family life. I do not see any reason why it should be used.
Taking, for example, the question of the known donor outside of a clinical setting, I would like to put a case study on the record. Elaine, the birth mother, and Jenny, conceived their baby, a girl, at home using sperm donated by Jenny's brother. They had no problem conceiving and did not need any clinical intervention. Their donor was happy to give consent to both women being recognised as the legal parents. As their baby is only three months old, Jenny is unable to seek guardianship under the Children and Family Relationships Act 2015 because the child is less than two years old. Therefore as the law stands, she has no legal relationship to her child and is unable to establish a legal relationship until her daughter is two years old. That is a really significant gap where there is no legal parent. That needs to be addressed.
Other jurisdictions have considered these situations and, for example, in the United Kingdom, a statutory presumption of parentage operates in favour of same-sex married couples and civil partners. Let us consider the situation of a known donor in a clinical setting in respect of a child conceived before Parts 2 and 3 of the Children and Family Relationships Act 2015 are commenced. For children conceived prior to the commencement of Parts 2 and 3, parentage may be retrospectively allocated to an intended parent not previously recognised as a legal parent through application for a declaration of parentage under sections 21 or 22 of the Act. In order for the declaration to be granted, the donor must have been and remain unknown to the intending parent at the time of the application. This is daft. Why should it be unknown? That is an unnecessary criterion to introduce into the legislation and it should be got rid of, particularly in light of the fact that the word "unknown" is not defined in the legislation so it also is in a grey area.
This approach penalises couples who choose to use a known donor in order to safeguard their child's right to identity. I can cite another case study in which Jane, the birth mother, and Sara have an 18 month old baby boy, Jake. Jake was conceived in a fertility clinic using sperm provided by an identifiable donor. Jane and Sara want Jake to know about his origins and they have obtained identifying information about the donor in order that they can educate Jake about his genetic background. This is really important. One needs to know these things. Why have this thing about unknown donors? There could be medical situations involved, genetic disorders and all this kind of stuff. This information should be available and should be known. The women have never met the donor but know his name and last known address. Jane is the birth mother of Jake and is recognised as his legal mother. After Parts 2 and 3 of the Children and Family Relationships Act 2015 are commenced, Sara will be unable to obtain a declaration of parentage listing her as the second legal parent because a known donor was used.
For balance and diversity, I would like to end with a male case study. Laurence and Eddie have six year old twins which they conceived using a surrogate mother in the United Kingdom, not in Ireland. Eddie is the legal parent of the twins. The woman who was the surrogate for the couple is in regular contact with the family and is happy to consent to Laurence being recognised as the twins' legal parent. One of the children has significant health issues and needs regular medical attention. While Laurence has guardianship of both children, this does not recognise his parental relationship to them, which has huge implications for the family.As Eddie explains: "I have a little boy with a rare genetic disorder which will mean that he will need care after his other dad's guardianship ends when he is 18". There is another crux there.
I only very briefly addressed the terms of the Bill the Minister is introducing to the House, but it is very important to take this message to the Minister for Health in advance of the finalisation of plans, which I understand are well under way.
I welcome this long-overdue Bill on behalf of the Labour Party Senators. I welcome into the Public Gallery Paula Fagan and her colleagues from LGBT Ireland. I commend them for the work they have done to ensure that this Bill remains a political priority. It is great to see it here. It is most unfortunate and regrettable that so many couples have been waiting for four years, since the resounding passage of the marriage equality referendum, to see this piece of unfinished business passed into law. We had all anticipated that the Children and Family Relationships Act would come into effect fully on the passage of the marriage equality referendum and that there would be no long delay.
This is a technical Bill. My colleague, Deputy Penrose, said in the Dáíl that it is quite difficult to follow the provisions of it because it is technical, but we know that its key purpose is to facilitate or bring about the commencement of the relevant sections of Part 9 of the Children and Family Relationships Act 2015, which will make possible, at last, the registration and re-registration of donor-assisted births, and to record the particulars of both parents where two women are together in a same-sex relationship. As others have said, many families have been deeply affected by this and have become so frustrated at the delay in bringing this in. I know many families in that position, so it is really to be welcomed that this is finally being given affect to, albeit that it is long overdue.
Some of the technical amendments seem bizarre. One of the difficulties arose in the context of the naming of the 2015 Act and the confusion between two Acts, the Gender Recognition Act 2015 and the Children and Family Relationships Act 2015. A proposed amendment to section 2 of the Bill would change the definition of the words "Act of 2015". It seems to me that this should have been done much sooner. The most pressing issue when we pass this Bill - and I assume it will be passed as swiftly as possible - will be the point at which the provisions of the 2015 Act come into effect. An amendment was passed in the Dáil which provides a backstop, if we can use that term, providing that 6 October 2019 will be the date on which the provisions will be commenced if they have not been commenced before that date. I believe the Minister said in her speech that the Minister of Health hopes to commence the Bill before the summer recess. I do not know whether she can be more specific about a date. Might it be in place before the end of May? I certainly believe that this House will facilitate the speedy passage of this necessary legislation.
I thank the Minister for also dealing with another pressing legacy issue, namely, the legislation necessary to put into effect a remedy for people like David Parris, who had been so affected by the difficulties he faced and the European Court of Justice ruling against him in terms of pension rights for gay couples. I had brought that legislation before the Seanad as a Private Members' Bill initially. Senator Norris has also raised some significant issues relating to the substantive provisions in the Children and Family Relationships Act 2015. As a member of the Joint Committee on Justice and Equality, where we had hearings into some of the issues around donor-assisted births and surrogacy, we saw and heard at first hand from so many stakeholders and NGOs just how complex these issues are to legislate for, how medical and technological developments have moved on and how we have to address those in our legislation. Huge gaps remain, particularly around births through surrogacy. All of us are aware that this is going on, but currently it is unregulated. I understand that the Department of Foreign Affairs and Trade is dealing with this in an ad hocmanner where children are born abroad via surrogacy and require Irish passports and recognition in law. Senator Norris has raised some very complex issues which require urgent attention from us as legislators. When is it proposed to deal with those issues? I am conscious that my comments go way beyond the technical provisions in this Bill.
There is other unfinished business in terms of recognition of families. I welcome what the Minister has said about the need to recognise diverse forms of families, but we should look to amend our Constitution, which still only recognises the family based on marriage and which therefore leaves a large number of family units unrecognised in this country in 2019. They are deserving of recognition, and should be recognised in our law. I look forward to further debate on Committee and Report Stages on this important Bill, and I welcome its introduction.
I thank the Members of the Seanad, not just for today but for the last couple of months. I appreciate everyone's frustration, but I hope that it is realised that this is literally the only legislation drafted by the Office of the Parliamentary Counsel since January apart from the Brexit-related legislation. That is how important this legislation is.
There are difficult concepts remaining outside of this Bill that a number of Senators have alluded to. Unfortunately they are not under my remit, but I agree with most of what has been said in this House and will pass on the information given to me today, not only to the Minister for Health but also the Minister for Justice and Equality who has responsibility in the area of surrogacy for some strange reason. We have a weird set-up in this country. Our responsibility will be to ensure that the registrations office provides the legal certificates arising from any changes in legislation that we will decide upon in the coming months, and we will do our bit. I certainly will not be afraid to annoy people or poke them in the eye to remind them what their responsibilities to our citizens are.
Senator Bacik is absolutely right to say that once this is done the elephant in the room will be the question of whether our Constitution holds and cherishes a definition of a family that does not reflect the old realities anymore. We are widely acknowledged as an advocate and leader on the world stage of what can be done in what is considered a conservative, religious country in a very short space of time. Indeed, the lovely Nancy Pelosi acknowledged the same last night. However, our laws and our Constitution have to follow just as quickly.
I thank the Senators for their contribution. I am reliably told that we will be back here on 8 May for Committee and Report Stage.