Seanad debates
Wednesday, 15 November 2023
Nithe i dtosach suíonna - Commencement Matters
Legislative Process
10:30 am
Mary Seery Kearney (Fine Gael)
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The Minister of State is very welcome and I thank him for taking this matter. I got an email of apology from the Department of Health regarding this, as it is a very important matter. I have no doubt the Minister of State will deal with it very properly. Last year in March the Health (Assisted Human Reproduction) Bill 2022 commenced in the Dáil. It passed Second Stage and moved on to Committee Stage. It was paused on Committee Stage to afford the Committee on International Surrogacy an opportunity to sit and make recommendations to Government. That committee did so and made a presentation to Government of the report on 6 July, and the Acting Chairperson was part of that. On 17 December the Minister for Health was very much appreciated and applauded for bringing to Cabinet a policy paper that pretty much took on board all the recommendations of the committee on how we might legislate for children who are currently living with a legal relationship with only one parent because there is no legal mechanism for the second parent to become their legal, lifelong parent and also for future children born via surrogacy.
Surrogacy is a fact of infertility. It is a treatment for infertility. The people who avail of it, where they are women, are unable to carry a pregnancy because of very serious infertility issues, have experienced serial miscarriages and include cancer survivors. The 221+ Group need to avail of surrogacy for instance, as do people with cystic fibrosis who have had fairly catastrophic treatments. There are also same-sex couples. Male same-sex couples naturally need surrogacy in order to advance their family and do so very successfully. However, under the current regime, the biological father is the only person who may have a legal, lifelong relationship with that child in future and with children already born. Everybody here wants safe, ethical surrogacy. Everybody here wants to be able to look their child in the eye and say that everybody involved in this process has been honoured and respected and that this is who you are, this where you came from and this is your story. I have an eight year-old and she knows everything about her life and about how it came to the point that I am not her legal mother but my husband is her legal father. Everybody in this situation wants their surrogate protected, and future surrogates protected, from any possibility of exploitation.
I have no doubt there is a sentence in the Minister of State's speech that says this is very complex law, because that is what gets said back to me all the time. I have no doubt about that. I appreciate an awful lot of work went into drafting the legislation this year and I acknowledge the amendments are nearly there, but there is huge concern that here we are nearly a year later and coming up to the 17 December. We need to see the amendments. I have been afforded a meeting with the Attorney General. In extraordinary circumstances I was awarded a meeting with him and a senior official in the Department of Health. I know the amendments were coming, but I also know they were delayed because the senior drafter was drafting housing legislation. That is really needed, but what is pretty shocking is we are the Government and we only have one senior legislative drafter. One would have imagined the Government of the country could command greater resources than that, but am I not naive for having thought so? There cannot be any more delays. There are parents who live in fear the biological father will die and the child will have no legal parent in this country. There are families where that relationship has broken down, but the second parent is staying in an abusive relationship with a power imbalance because they have no recourse to the courts. We need a timeline and we need it urgently.
Dara Calleary (Mayo, Fianna Fail)
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I thank the Senator. We normally get handed folders for these replies, but it is a pleasure to acknowledge the Senator's extraordinary work on this issue, her leadership and her courage over a long, long time. She has nearly given the response. I will go through it, but I will absolutely convey back the urgency of this and the Minister, Deputy Donnelly, gets the urgency.
The Senator knows this, but I can confirm the formal drafting process of the new surrogacy provisions by the Office of the Parliamentary Counsel, OPC, in conjunction with three relevant Departments is now nearing completion. As she referenced, drafting of the Bill had to be paused due to a diversion of personnel to work on highly-prioritised, non-Department of Health legislation. The Minister has asked me to assure the Senator he is prioritising this work. Department officials are engaging intensely with all relevant Departments and other relevant parties, including the Office of the Attorney General, on a daily basis. The Minister has had direct engagement with the Attorney General on this in recent days.
The intention is to insert the finalised new legislative provisions in respect of international surrogacy and past surrogacy arrangements into the Health (Assisted Human Reproduction) Bill 2022 on Committee Stage, along with other proposed amendments to the 11 Parts and 134 pages of the published Bill. These new provisions will need to be approved by Government following the completion of formal drafting by the OPC. The Minister hopes to seek approval for the amendments shortly.
The Senator will appreciate that there is no international consensus on, or any agreed legal instrument addressing the issue of, international surrogacy. She will be aware the Hague working group on private international law matters related to legal parentage generally, including legal parentage resulting from international surrogacy arrangements, is only holding its first meeting this week. It is the understanding of the Minister there are still concerns and reservations among a number of countries participating in this conference towards the undertaking of surrogacy in any form. The absence of a precedent or agreement from an international perspective underlines further why it is imperative we get this complex legislation right, which is something the Senator is absolutely committed to. We also need to ensure alignment with provisions in existing related legislation on the Irish Statute Book.
While it is not possible to provide details prior to agreement by Cabinet, the legislative proposals related to international surrogacy being pursued are closely aligned and consistent with the provisions related to domestic surrogacy outlined in the published assisted human reproduction Bill. Also, the stated position of the three Ministers and the Government has been to seek, insofar as is appropriate and possible, to implement the recommendations of the Oireachtas Joint Committee on International Surrogacy. A key feature of this will be the introduction of a pre-approval system for permitted international surrogacy agreements. The three Departments are not aware of any other jurisdiction that has legislated for a similar type of bespoke process to the one we propose be set up here. Finally, it is anticipated the Minister, Deputy Donnelly, together with the Ministers for Justice and Children, Equality, Disability, Integration and Youth, will be in a position to bring the updated Bill, taking account of the amendments, to Cabinet in the coming weeks.
Mary Seery Kearney (Fine Gael)
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I will hold on to the words "in the coming weeks". I am aware from my own sources - and to be fair, the Minister, Deputy McEntee, is in regular touch with me as well - that that is actually faithful. I want to puncture one misleading piece in all this. We are not putting in a piece of legislation that has extrajudicial impact. We are saying if an Irish couple is going to pursue surrogacy expecting the support of the State, including an Irish passport and the right to both parents in this State to have lifelong relationships with the child and not to be criminally prosecuted, then they must conform to this set of principles. If people go outside that and engage in unethical acts there should be criminal prosecution, because I believe very strongly it should be about the right thing. One has to look that child in the eye. This is a human being's story, so it has to be ethical and it has to be all those things. We are saying people must conform to this set of principles if they are going to avail of opportunities in the State, not that we are legislating for what happens abroad. We are saying what happens abroad must conform to this or else it is not going to happen. I am very optimistic we will have captured all that. The Chair of the surrogacy committee worked alongside me and others to very much hold to that idea and to the international Verona principles that enshrine all these things, including ensuring a child's right to their identity, ensuring there is no human trafficking element and ensuring the dignity of the human being is respected throughout.I have no doubt that the Minister will bring this forward in a couple of weeks. That will go down very well in the surrogacy community.
Erin McGreehan (Fianna Fail)
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We all hope it will happen in a couple of weeks. I thank the Minister of State.
Dara Calleary (Mayo, Fianna Fail)
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I acknowledge again the work of the Senator and the Acting Chairperson in the committee. I can assure them of the commitment of the Minister, Deputy Donnelly, to this. In his remarks to me he said he had conversations in recent days with the Attorney General and is determined to get this through.
Erin McGreehan (Fianna Fail)
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Before I welcome the Minister of State, Deputy Malcolm Noonan, to the House, I welcome a young lady, Áine O'Reilly, who is in the Visitors' Gallery. She is in Leinster House this week on work experience and is very welcome.