Wednesday, 21 September 2022
Nithe i dtosach suíonna - Commencement Matters
Assisted Human Reproduction
There is no doubting the Minister of State's strong work ethic and I thank her for taking this matter. In early July, the Oireachtas Joint Committee on International Surrogacy published a report that was very well received by the three Ministers to whom it was relevant, namely, the Minister for Health, who is the lead Minister on the issue, and the Ministers for Justice and Children, Equality, Disability, Integration and Youth. They made recommendations that can be broadly put into two categories, the first of which was the ethical future of international surrogacy and the need for legislation in the State, and a framework was suggested for that. The second related to a retrospective provision for children who have been born via surrogacy, or for those who are on the way via surrogacy, to ensure there will be a legal relationship between those children and both of their parents.
Surrogacy has a long history of various entities telling the State that we need to take action on it, from as long ago as when the Taoiseach was Minister for Health in 2005, when the Commission on Assisted Human Reproduction recommended that we legislate for surrogacy. Numerous court decisions, including of the Supreme Court, have found that the State needs to legislate in this area. In 2012, the then Minister for Justice and Equality, Alan Shatter, issued guidelines for international surrogacy, not least because of the citizenship element of it. In 2017, the assisted human reproduction Bill underwent pre-legislative scrutiny, out of which a recommendation was made to legislate for international surrogacy. The Conor O'Mahony report on the child protection implications of international surrogacy was published in 2021, after which the Oireachtas joint committee commenced its work on a tight timeline because its members were conscious that the Health (Assisted Human Reproduction) Bill had gone to the Dáil, where it is now awaiting Committee Stage under the Department of Health.
Well over one thousand children do not have a legal relationship with both of their parents, be that a second father or, in the main, women who do not have a legal relationship with their own child. That leaves them in a precarious position whereby if the father of the child, who needs to be the biological father, becomes seriously ill and perhaps faces death, the child will be left with no legal parent in the State. There are cases before the courts seeking clarification and, bizarrely, the State is defending those cases and paying legal bills for discovery at a time when there are numerous reports stating that we need to legislate for surrogacy.
There are situations of marriage breakdown. In the past couple of weeks in particular, I have had sight of solicitors' letters from the father of children to the mother reminding her that she has no legal standing and that if she relinquishes the claim on their family home, she may be given access to her children. Children are being weaponised because of the State's failure to legislate for surrogacy and for children born via surrogacy.
We need equality for these children. Regardless of the means of their conception and birth, they should have equality and a right to a legal relationship with both parents before the State. We were led to believe that amendments were to be brought in on Committee Stage of the health Bill that would address this. I appreciate that both the Departments of Health and Justice need to act on this, but we need action and we need to know a programme will come in such that before Christmas, the legislation could be passed by both Houses of the Oireachtas.
I thank the Senator for giving me, on behalf of the Minister for Health, this opportunity to inform the House on the progress made to date in respect of introducing the regulation of international surrogacy. I acknowledge, and thank her for, all the work she has done in regard to surrogacy.
The undertaking of surrogacy arrangements in other jurisdictions raises complex ethical questions concerning areas of law that intersect the remits of several Departments, as the Senator noted, namely, the Departments of Justice and Children, Equality, Disability, Integration and Youth, as well as the Department of Health. Accordingly, and on foot of Government approval of proposals from the Ministers, Deputies McEntee, O’Gorman and Stephen Donnelly, the special Oireachtas Joint Committee on International Surrogacy, of which the Senator is a strong member, was established on 9 February. As she pointed out, the committee published its first report on 6 July, which included a total of 32 recommendations. On behalf of the Ministers and the Government, I reiterate their gratitude for the work of the committee and the completion of its report in such a timely manner.
Following the publication of the committee's report, through a structured and collaborative engagement process, the Departments of Justice, Children, Equality, Disability, Integration and Youth and Health are reviewing the report's recommendations, along with other relevant matters, with a view to determining an appropriate policy position and suitable next steps. It is crucial the relevant Departments complete a robust and thorough examination of all the issues, including the findings and recommendations of the committee's report, given the range of complexities involved and the rights of the various parties involved in surrogacy arrangements.It is also important to recognise that there is no international consensus or multilateral instrument on this issue at the moment, notwithstanding that the expert group appointed by the Permanent Bureau of the Hague Conference on Private International Law is due to report in 2023 following the conclusion of its ongoing formal study of the private international law issues being encountered. There are also highly divergent views within the EU on this issue, with a number of member states prohibiting all forms of surrogacy.
Nevertheless, the Ministers and Departments are committed to progressing as quickly as possible the development of policy proposals along with any required legislative proposals, while respecting the key principles of protecting the rights of all children born as a result of cross-border surrogacy arrangements and safeguarding the welfare of surrogate mothers. I think that sums up the key points. This detailed consideration is ongoing and the Departments are meeting frequently to actively work through the pertinent issues with the aim of producing an agreed policy paper shortly.
To say I am not impressed by that response is mild, to be perfectly honest, and with due respect to the Minister of State, who is merely the messenger. That the Departments have a view to developing a policy paper is a wholly inadequate and absolutely unacceptable response. There are children in this State who have the right to the two parents, that is, the mother they have only ever known and their second father in the case of same-sex couples.
Last weekend, I had to fill in a form for my daughter that described me as her "guardian". She has not known any other mother. I am her only mother - she would not have been conceived if it were not for me. She would not be alive were it not for me. Unfortunately, I could not give birth to her, but the idea that I am her guardian is unacceptable. That situation will expire when she is 18 and bring with it a whole heap of other difficulties regarding next of kin. It will impact our relationship for the rest of our lives. It is absolutely and utterly unacceptable that at this stage, after all the work that has gone in, all the Departments are doing is developing a policy position. That will go down incredibly badly with the surrogacy community across the country. This relates to thousands of people who came out and expressed their views and disenchantment with the Government and its absolute abdication of its responsibility to the citizens of this State. It is absolutely appalling that we are not in a place where actual amendments to that Bill are not being drafted and that the Departments are still talking about it.
I thank the Senator for sharing her personal experience. I can understand her upset and frustration. It must be borne in mind, however, that policy and legislative proposals that may arise following the completion of the Department's examination of the committee's recommendation will require consideration and approval by Government.
The Senator will be aware that, overall, there are significant challenges to be addressed in respect of policy and legislation, but also in the context of operational matters including the role of regulators, the courts and all parties involved in international surrogacy arrangements. It is complicated by the fact that there is an acknowledged absence of any international framework for subsequent challenges associated with overseeing practices and services in other jurisdictions, including having assurances that surrogacy arrangements are of the highest ethical standards and prioritising those who may be most vulnerable to exploitation in international surrogacy.
The limitations that arise in this regard are also acknowledged by the committee in the report. However, there is a clear commitment to developing policy and legislative responses to the numerous complexities and difficulties which arise for us to achieve a robust and ethical framework for future international surrogacy arrangements and provide certainty for all those concerned.
I will feed back to the Minister the Senator's disappointment at what she feels is an unacceptable response.
It is total obfuscation by the Department of Health in actual fact. The fact is that every common law jurisdiction that influences our jurisdiction in courts has already legislated for surrogacy. The position that is being put forward by the Department of Health is absolutely untrue.