Wednesday, 15 May 2019
Civil Registration Bill 2019: Committee and Remaining Stages
I was contacted recently by an Irish woman whose British wife gave birth to their son. When the Irish mother, who is the non-biological mother, wished to apply for an Irish passport for her child, she was told that she was not recognised as a mother under law and, therefore, was not entitled to apply for an Irish passport. I do not know what the legal interpretation is from the Department but I had attempted to legislate or to make an amendment to deal with the issue. I believe the Minister knows the parents who are affected and I am sure she empathises with the anxieties that they have. I ask that she might advocate with her colleagues in the Department of Justice and Equality to sort this out rather than leaving families to suffer that discrimination.
I thank the Senator and totally appreciate what he is trying to do. The only reason it has been ruled out is because it is not possible to deal with the issue within the confines of this particular Bill. We will genuinely have other occasions, hopefully very soon, to try to address the issue.
I move amendment No. 4:
In page 8, between lines 2 and 3, to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):‘(6) When a child is conceived through non-clinical Donor Assisted Human Reproduction procedures should be in place to recognise a second intended parent as a legal parent.’.”.
What I am doing with these amendments is making up for deficiencies, gaps and lacunae in the legislation.
Amendment No. 5 states:
"In page 8, between lines 2 and 3, to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):‘(6) Retrospective applications for a declaration of parentage in cases of Donor Assisted Human Reproduction should be recognised where a known donor was used.’.”.
This is an extraordinary exclusion where the known donor is actually excluded I do not understand the logic behind that at all.
Amendment No. 6 states:
In page 8, line 3, to delete “” and substitute the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):‘(6) The second intended parent in cases where she provides her egg to enable conception should be recognised as a legal parent.’.”.
Finally I refer to amendment No. 7, which reads:
In page 8, between lines 3 and 3 [I do not understand that], to insert the following:“(2) Section 27 of the Act of 2015 is amended by the insertion of the following new subsection after subsection (5):‘(6) When a child is conceived through surrogacy outside the state procedures should be in place to legally recognise the parentage of the child conceived.’.”.
I have received several messages from people who conceived a child in Canada, Great Britain or wherever. Their parentage is not recognised. Although the Bill is very welcome and is an improvement, there is no question but that certain issues are not properly addressed in it at all. For example, options for lesbian and gay families who perform at-home insemination are not contemplated at all. There is also a need to provide couples who use a known sperm donor, as in the case I referred to earlier, and avail of fertility treatment outside of Ireland. I have a letter from a male same-sex couple saying that as it stands the current proposed assisted human reproduction Bill, more specifically Part 6, is not fit for purpose as it will exclude all families that have gone through surrogacy journeys abroad and all future families that choose to go abroad.
I have received another email from a same-sex male couple that has created a family through the process of surrogacy in Canada. This correspondent notes that no legislation currently in place or due to be enacted includes his family or many families like his and recognises his husband and him as the legal parents to their son. For this family to be recognised, the general scheme of the assisted human reproduction Bill 2017 must include same-sex male families who have used international surrogacy as a way to create their families. This is a glaring omission from the Bill and I would like to see it rectified.
I have received another message from a female gay family. My correspondent and her wife live in Dublin 7. They are a married same-sex couple with one daughter, Catherine, who is six months old. One of the couple, as the birth mother of their daughter, is currently considered a single parent. Her wife has no legal connection to her daughter. Their daughter is classified as having a single parent and has no right to one of her mothers. This couple's only option at the moment is to wait two years and apply for guardianship, which expires at the age of 18 anyway and does not give full parental rights. Once the Children and Family Relationships Act 2015 is fully commenced, perhaps in 2019, this couple may also have the option of applying for step adoption after two years, but this can take up to seven years. There is an enormous gap in that process and I do not think that is acceptable.
The four amendments I have put down are governed by a principle. It is recognised internationally that the principle that underlines all these items of legislation should be the best interests of the child. It does not hinge on the behaviour of the parents or where the child was conceived. The child has no control over that. Why should a innocent child be victimised for something over which they have no control? The best interests of the child are paramount in this situation.
I would like to look at a number of the cases. First, there are cases involving a known donor outside of a clinical setting. In other words, there has been a non-clinical intervention. I will put such a case on the record. I note that non-clinical procedures are currently excluded from the parenting provisions in the Act. The result is that children conceived through donor-assisted human reproduction, DAHR, outside the clinical setting do not have a legal relationship with the second intending parent at birth. Children conceived through DAHR outside the clinical setting are therefore disadvantaged when compared with children conceived through DAHR in a clinic by virtue of the circumstances at conception. This is greatly unfair to the child involved. I will put a case study on the record.
For the purposes of informing the public, insofar as any members of the public are watching this, it is important to put a human face on the situation. Nothing does that better than a case study. Elaine, the birth mother, and Jenny conceived their baby at home using sperm donated by Jenny's brother. They had no problem conceiving and did not need any clinical intervention. The donor is happy to give consent to both women being recognised as legal parents, that is, there is no objection from the sperm donor. As the baby is only three months old, Jenny is unable to seek guardianship under the Children and Family Relationships Act 2015 as the child is less than two years old. As the law currently stands she therefore has no legal relationship with her child and is unable to establish one until her daughter is two years old. There is a very considerable gap there which needs to be addressed.
We can learn something from other jurisdictions. Some address this issue by extending a statutory presumption of parentage to some couples. In the United Kingdom, for example, a statutory presumption of parentage operates in favour of same-sex married couples and civil partners but not cohabiting couples in cases of donor insemination. As such, the spouse or civil partner of the birth mother is automatically regarded as the child's second legal parent, regardless of whether the procedure takes place in a clinical or non-clinical setting. In British Columbia a person who is married to or in a marriage-like relationship with the child's birth mother at the time the child is conceived, is deemed to be the child's parent unless it is shown that he or she did not consent to be recognised as such. Here are two other jurisdictions in which the matter is addressed clearly and the rights of both parents are established.
Then there are cases involving a known donor in a clinical setting. Again, I fail to understand why the fact that the identity of the donor is known should restrict the rights of the child. That is not fair. For children who were conceived prior to the commencements of Parts 2 and 3 of the Children and Family Relationships Act 2015, 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 and 22 of the Act. In order for the declaration to be granted, the donor must have been and must remain unknown to the intending parents at the time of the application. If the Minister supports the existing situation, I would be interested to know if she can say why it is important to remove a known donor. Again, I have a case study.
Jane, the birth mother, and Sarah have an 18 month old baby boy, Jake. Jake was conceived in a fertility clinic using sperm provided by an identifiable owner. As Jane and Sarah want Jake to know about his origins, they have obtained identifying information about the donor in order that they can educate him about his genetic background in an age-appropriate manner as he grows up. I note that this is also important for medical reasons. Another of my corespondents has a child with a genetic disorder. It is very important for them to understand and know. Jane and Sarah have never met the donor but know his name and last known address. Jane is the birth mother of Jake and is recognised as the legal mother. After Parts 3 and 4 of the Children and Family Relationships Act 2015 are commenced, Sarah will be unable to obtain a declaration of parentage listing her as a second legal parent simply because a known donor was used. I do not understand that at all.
Then there is the question of fertility treatment which is received abroad. I have corresponded with people who have had this procedure done in Canada and in the United Kingdom. Section 20 of the Children and Family Relationships Act 2015 provides that application for a retrospective declaration of parentage may be made in respect of a child conceived before Parts 2 and 3 of the Act commenced, through DAHR performed in the State or outside the State. For children born after Parts 2 and 3 are commenced, the procedure must be performed in the State. I do not understand that. These procedures have quite a pedigree in places like the United Kingdom and Canada, so why they should not be recognised I simply do not know.
I will provide another case study. Sue and Theresa initially attended a Dublin clinic for assisted human reproduction, AHR, treatment. When significant fertility issues were identified they had to look abroad for further treatment. In other words, they did not have a choice. They had to look outside the country of their residence if they wanted to have a child at all. Their daughter was born in early 2018. As she was born before the commencement of the Children and Family Relationships Act 2015, Theresa will be able to apply for retrospective declaration of parentage naming her as the legal parent. Here is the significant point. The couple has a number of embryos in storage. They represent a possibility that has not been entertained or acted upon so far. If the couple use these embryos to conceive a genetic sibling for their daughter, they will not be able to apply for parentage under the Children and Family Relationships Act 2015.That is also something that needs attention.
Under the assisted human reproduction Bill, only domestic surrogacy will be permitted once the legislation is enacted, but that is very restrictive. There is no provision in place to recognise the parentage of children born through surrogacy before the Bill is enacted and commenced. The child has no control over the circumstances of conception and should not be disadvantaged by virtue of the fact that he or she was conceived by surrogacy abroad. Again, I return to the principle of the best interests of the child. The child has no responsibility for the activity of the parents. He or she is not culpable and should not be discriminated against as a result. It is in the best interests of the child for his or her relationship with the intended parents to be legally recognised. This has been recognised by the UK courts, with Mr. Justice Hedley finding that "...it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised, at the very least, by a refusal to make an order ... transferring parentage to the intended parents." This is a senior judge in Britain arguing that the welfare of any child would be gravely compromised, at the very least. That is a very significant point.
I hope my remarks have persuaded the Minister to accept some of the amendments at least.
I thank the Minister for coming to the House. I support the amendments tabled by Senator Norris. On the last occasion I also referred to the assisted human reproduction Bill. while I know that it is not before the House today, there are elements of that legislation with which I strongly disagree. I argue that some of it is actually out of date, even though we have not yet had a chance to debate it in this House. I refer specifically to the provisions dealing with anonymous egg donation and surrogacy, as highlighted by Senator Norris. We all have stories to tell of people who come to us to discuss fertility matters. I met one couple who were fortunate to have a child abroad using the father's sperm, a donor egg and a donor gestational carrier. They had obtained a passport for their child on the basis of the father's DNA material. However, only he is referenced on the child's birth certificate, which is so unfair. In Ireland birth certificates are documents five year olds, once they are able to read, will pull out of a drawer to examine and scrutinise. Imagine a five year old girl comparing her birth certificate with that of a friend and finding that the name of her mother is not on it. Imagine how that will make her feel.
The second issue concerns a friend of mine. I am sorry-----
Yes. This is a very difficult subject and I am conscious that many decisions are being made in a void. People have been trying to build their families in different ways and doing so in the absence of a legal framework. That makes it difficult when we then try to introduce a framework or regulatory structure. It is very important to look at the rights of the children who now exist to ensure they have parentage rights and the right to a relationship with their siblings and so forth. At the same time, I understand that, at an international level, this is an area that has been unregulated for a long time. There are serious issues to be addressed in terms of how the sector functions. I know that many of the issues will be dealt with in the context of the assisted human reproduction legislation, but the fact that they are emerging is a sign of people's frustration and concerns. We must address all of these pragmatic issues for families now, for those who have children and rights under the Constitution. We must determine how we can support them. That is one part of the issue, but there are others on a changing landscape. An amendment accepted by the Minister for Children and Youth Affairs, Deputy Zappone, two years ago took effect this week. It concerns open adoption. It recognises that there may be situations where openness about children having both a birth family and an adopted family is better. That is something that was off the table in Ireland for a very long time. The system was closed.
I refer, in particular, to one of the amendments tabled by Senator Norris, as well as to one or two of the others because I am concerned about international exploitation and believe we must tackle that issue. I strongly support the concept of the known donor. We are beginning to accept the concept of open adoption and recognise that children can understand complex relationships as long as there is honesty and they receive support. Children understand that even though they may have an adopted family, they still have a birth family, with whom they can have a relationship. Similarly, children can understand the concept of having parents and also a donor who is known to them. It would be a real pity if those genuine, relationship based situations, as described, were to be inadvertently excluded from this recognition. Amendment No. 5 deals with this issue and it is one we must address. In doing so it would be in step with what we are doing in the area of adoption, or rather what we are considering doing in the area of adoption.
I thank Senators for their support and co-operation in getting us here so quickly. On a personal level, I find it very difficult to disagree with anything Senators have put forward or any of the comments they have made, but we are dealing with the Civil Registration Bill. While I very much accept the intentions of Senator Norris, as well as his bona fides, sincerity, interest and passion, and understand fully why he wants to address the issues dealt with in his amendments, I am trying to fix one situation while recognising there are genuinely lots of others that have to be fixed. The only reason the amendment is in order is we changed the Long Title of the Bill to fix an anomaly in the Child and Family Relationships (Amendment) Bill. Intrinsically, this is the Civil Registration Bill. The issues raised by Senators are so complex and their comments are so heartfelt because they are based on the lived lives of people we know or who have made themselves known to us and about whom we care.
I know that the Bill is not perfect, but I do not want perfection to trump fairness. We are trying to be fair to the people whose situation we can fix today. We are trying to address their lived life experiences and I genuinely do not think we should make them wait any longer. I know that the Child and Family Relationships (Amendment) Bill will not commence until June and I will hold others to that date, but what Senators are asking me to do today is to entertain changes that would have to be reflected on for months, if not years, because they are so complex. That is not something those of us who are in the Seanad today are going to do. Having recognised their bona fides, I ask Senators to withdraw the amendments rather than push them to a vote. I invite Senator Norris and anyone else who is interested to meet the Minister for Health, Deputy Harris, and his officials to discuss the assisted human reproduction Bill to make it what we all want it to be. Such a meeting can be arranged in the coming days or weeks. The Minister will be very happy to hear from Senators and try to accommodate and facilitate them in arriving at a legal basis to provide legal status for the people who were described so eloquently by Senators in their testimonies.
I turn to the specific amendments related to the provisions of the Child and Family Relationships Act that do not incorporate artificial insemination procedures carried out in any setting outside the donor assisted human reproduction facility. A number of decisions were reached by the European Court of Human Rights, ECHR, that referenced the importance of biological parentage as a component of one's identity. Genuinely, as it has been presented today, it would not be possible in the case of children born as a result of donor assisted home conception, for want of a better term, to have their right to information on their origins vindicated, as defined by the ECHR, without adequately addressing the issues that would be raised in the context of the Senator's suggestion. Retrospective declaration of parenthood, as provided for in Part 2, section 20 of the Act of 2015, only applies to children born as a result of donor-assisted human reproduction procedures for which the donor was and remains unknown to the mother. The legal advice provided to the Department of Justice and Equality during the drafting of that Bill in 2015 stated that where the parental rights are vested in a known individual, both that individual and the child have rights accruing from that connection. Removal of those rights in the context proposed would be inappropriate. That is why I believe - I am asking Senators to consider this - that the general scheme of the assisted human reproduction Bill is the most appropriate forum to genuinely examine and find a proper solution that vindicates all the rights of parents in all of the guises that present as well as the rights and best interests of the children. That is the best way to find solutions to the lived experiences of the people Senator Norris has described today.
The joint committee intends to report on the general scheme of the Bill before the summer. I will genuinely take it upon myself to arrange a meeting. I would encourage every Senator to sit in front of the Minister for Health, Deputy Harris, and the officials and to describe as eloquently as they have done here the real-life experience and disenfranchisement that arises for families and children in particular.
The main priority of the Bill before us today is to provide a register of donor-assisted births that make it possible for both partners, who happen to be female in this case, to be registered as parents. Perhaps Senators are receiving the same almost-daily text messages and tweets that I get from parents who are waiting. If I had to tell them after today that we had to postpone the passing of this Bill to deal with all the other pressing issues, I think it would break my heart as well as breaking their hearts. I am asking Senator Norris sincerely to consider all the really important issues he has presented today but to address them in a medium where they can be addressed. We need to look at the complexity of all of the issues that pertain to each of the individual amendments that Senator Norris has tabled today. They would be better placed in the confines of a Bill where they would probably be most appropriately addressed.
I thank the Minister for her accommodating words. She obviously finds it difficult to disagree with any of the things we have said. It seems to be a little bit of legislative NIMBYism - not in my legislative backyard. The view is that it is someone else's problem. I do not really accept that. In the case of one of the situations that I adumbrated here today the donor waived his rights. He was not interested in establishing rights. This is one of the things that the European Court, or whatever the organisation was, addressed. I would be happy to take up the Minister's offer of a meeting and try to explain this thing, but I do not actually see why it is not possible to include the amendments. If we incorporate these amendments then we have addressed the problems. I am not intending, nor do I wish in any way, to hold up the progress of this Bill. Let us suppose we did vote in or accept these amendments today. It would not hold up the Bill. It would actually make it far better. I take it we still have Report Stage to go. What I will do is withdraw, with the possibility-----
I know but I want to put on the record the fact that I regard this as very bad legislative procedure. We are denied the opportunity of taking up the Minister's offer to discuss the matter with the various Ministers involved in order to come to some kind of conclusion or negotiation that would take all of this together in a way that precludes us from putting down amendments on Report Stage.
I implore Senator Norris not to divide the House on this issue. I find myself in the position of having to vote against the Senator when I personally agree with what he is trying to achieve. This is genuinely not the Bill to do it in. These issues are so complex. The four of us sitting here cannot make decisions on the hoof for the vast numbers of people who have been waiting months, or years in many cases, to have these decisions made accurately, legally and constitutionally in the best interests of the child and family. I will not beg Senator Norris but I sincerely appeal to him not to divide the House.
We should deal with those issues in the confines of a Bill that is not the Civil Registration Bill. We are talking about issuing really important documents today. The complexity of the issues Senator Norris has brought up in amendments are legal, medical and family relationship complexities. They are not simple pieces of paper, although those pieces of paper are significant and make life-changing legalities. All the complexities of the legislation and the amendments Senator Norris has put forward have not been teased through by anyone. I am genuinely asking Senator Norris not to do this. Again, I will find myself having to vote against them, something I do not want to do. If they get passed, we will have to go back to the Dáil and I will have to try to remove them there. I would rather we put them in a Bill more pertinent to deal with them in a proper way.
That was a useful consultation. I have to say with the greatest reluctance I will not press the amendments. We have to be conscious of the people whose concerns will be addressed by this legislation. However, we must also be acutely aware - I can see the Minister is aware of this - of those families excluded from this Bill. I will certainly take up her offer of a meeting with the Minister for Health, Deputy Harris.