Mary Seery Kearney (Fine Gael)
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I move amendment No. 1:

In page 6, between lines 30 and 31, to insert the following:

“Surrogacy Parent Leave 3. (1) For the purposes of this section, a nominated employed parent is a parent who has been an Intended Parent within the meaning of the Health (Assisted Human Reproduction) Act 2024 and who has been a successful applicant for a parental order in respect of a child born via surrogacy.

(2) Upon granting of a parental order, a nominated employed parent, shall be entitled to leave, referred to in this Act as “surrogacy parent leave” from his or her employment for a period (“the minimum period of surrogacy parent leave”), beginning on the day of the parental order, of not less than the equivalent provision to maternity leave, or such other period as the Minister may, with the consent of the Minister for Social Protection and the Minister for Finance, by order, prescribe.

(3) The nominated employed parent shall make a relevant notification of their intention to avail of Surrogacy Parent Leave to their employer not later than 2 weeks before the date on which the granting of the parental order is expected to be issued.

(4) A person may not avail of surrogacy parent leave where the person avails of paternity leave under the Paternity Leave and Benefit Act 2016.”.

I have tabled this amendment as a Government Senator and have no intention of calling a vote on it. Let us be clear about that. There is a fundamental issue here, however, that needs to be discussed. Before doing so I want to consider how, in the Second Stage speeches we have had the words "important time with her baby" said over and over again. We have heard "bonding" said over and over again. I want us to remember that that is at the heart of maternity leave. That is at the heart of getting to know that little person, their little personality that emerges from birth and that little person's needs. I am thinking of how they feed, when they sleep, and what comforts them or does not comfort them. All those things are really important for maternity leave. The idea of surrogacy and the need for legislation on it has been talked about in this country since 2005. We have had Bills before the Houses since 2017. We had pre-legislative scrutiny in 2017. We had the Bill that included domestic surrogacy in July 2022. The policy memorandum went to Cabinet in December 2022. The drafting of that went into December 2023. We have had the Joint Committee on International Surrogacy, where we discussed the need for there to be surrogacy leave. There is no interference with the maternity leave entitlement of the woman who gives birth but the intending parents need that time with their child and they need the leave to be funded by the State in the same way that it happens for maternity leave and adoption.

I want to remember Fiona Whyte who is a fantastic mother of twins through surrogacy. She had to take a case against her employer who first granted her maternity leave and then later found out that it was actually surrogacy, although she had been completely open about that from the beginning, and withdrew her leave. She took an equality case knowing there was no chance of it succeeding. She wanted to make the point that when a woman has a baby by surrogacy, she does not have any entitlement to any supports in having a maternity or extended time. Many of us got off the plane with our child and went to work. I did it. I had a stand for changing my baby's nappy in my office. I had a fantastic employer at the time who was very accommodating of all of my needs but at the same time there were deadlines to be worked to. There are many women in law who cannot take maternity leave. From a surrogacy perspective, there is that need for the mother to bond with her baby. For many of the women who find themselves a position where they have to have children by surrogacy, it is because they have had a really serious illness. It is because they have come through cancer or have had a hysterectomies. It is because of a whole heap of things like that. Then they have the further indignity that they cannot even be guaranteed surrogacy leave.

Since last December, the Department and those involved in the interdepartmental group on surrogacy have been engaged. The fact that there is a duty on the part of the Department to provide for this leave is welcome. However, I am disappointed that the legislation has been passed since last July and that it has been foreseeable since at least July 2022, yet the list that was supplied to the Department of Health is the list. To be fair, I think I said to the Minister when this legislation for parental leave was being passed and we were sitting in the Dáil at the time that the wording of this implies that surrogacy parents will be able to benefit from this. However, there is very little for surrogacy parents. It was foreseeable that there was a need for it. I met the Minister, Deputy Heather Humphreys, very early in my Seanad career to ask her if she was amenable to this and to get her opinion. Her answer was a firm "Yes". She told me we could go and argue the budget for it but that she needed the legislative framework. I know that every submission that has gone into the Departments of Children, Equality, Disability, Integration and Youth, Health and Justice from Irish Families Through Surrogacy, Irish Gay Dads and Equality for Children all cite the need for there to be surrogacy leave and that this provision should be here.

It is disappointing that we are still waiting on it, with no timeline for when a couple or an individual having a baby can have that protected special time and be protected and supported in their employment. Maternity leave is not just about such parents having that protected time with their baby and that it is supported financially by the State but also that they have protected status in their employment. Apart from the fantastic employers who have taken the step to provide for surrogacy leave for their employees, there are no provisions and no supports. We are talking about families who have gone to extraordinary expense in IVF and in pursuing surrogacy. They come home and they have to work and be denied the time with their child or they have to give to give up their jobs and be without that income.

There is an urgent need for this. I understand that the Minister is ready to make a commitment on it and that it is under consideration in the Department. However, I have to chastise the Department on the very slow work on it because it has been foreseeable for the past two years that this legislation would be needed. It is not okay to decide that a cohort of parents who really need their time with their children can just be put on the long finger. That is not okay and it causes an awful lot of upset to the gay dads who really want one of them to be nominated. They are not looking at leave for both of them. They are looking for one to be nominated to receive the leave. Over the past several months, I have drafted legislation on the basis of it being similar to adoption. It should come in at the moment of a parental order. Parental orders are going to be expedited under the new arrangements under the Health (Assisted Human Reproduction) Act 2024. It is quite analogous to adoptive leave so it is not as if we are reinventing the wheel. There is a means by which we could look at this. I was drafting it extensively and in great detail and I thought that no matter what I did, it would not be accepted. I cobbled together the things that I thought were appropriate and I intended to make sweeping statements on them. My colleague, Deputy Leo Varadkar, is planning to do something similar in the Dáil. There needs to be a nominated parent and that would allow for the fact that same-sex couples need this leave. It cannot just apply to a woman or a mother only. That needs to be put in place and parents should be afforded the financial support that goes with maternity leave.

I know that a disappointing response was sent to Irish Families Through Surrogacy recently. We need a timeline. My understanding from the Department of Health is that the Bill is going to be commenced in January. We are waiting on work with the Courts Service at the moment and the establishment of the regulatory authority. By the time the legislation is passed, we need this surrogacy leave to be in place. None of us expect to benefit from it but for future couples this is part of the respect for them and the recognition by the State that both parents are equals before the law. These families need the nurturing that the State should be affording them. It is really important that we have surrogacy leave provided for as a matter of urgency.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senator for her proposed amendment and for powerfully articulating the need to legislate in this space and create that new entitlement for parents of children born via surrogacy to have the opportunity to spend time with their babies in the same way that all other parents do. I, along with the Ministers for Health and Justice, met a number of groups that represent surrogate and prospective surrogate parents some weeks ago. This was in the context of the wider surrogacy legislation being brought through the Houses at the moment. This was brought through Cabinet earlier this week. We discussed the issue of surrogacy and the importance of bringing this leave through. My officials are working on the policy around this. They are ensuring that we can bring in the right to leave and the right to entitlement.We are working with colleagues in the Department of Social Protection because, as with any other leave that has an entitlement element, it is a co-ordinated effort. My Department sets the policy, while the Department of Social Protection makes provision for payment and also makes provision in the Estimates for securing funding for that entitlement.

We are looking at an adoptive leave model. The Senator is right that that will probably be the best way to go in terms of what this will look like and how it will kick in. I hope we will be in a position to bring forward our proposals shortly. I asked my officials to prioritise this. The same team has been working on a set of different leaves recently. That has been prioritised and we have been able to advance these leaves at a good pace. I am happy to continue to engage with the Senator on the delivery of this important leave provision.

Pat Casey (Fianna Fail)
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When is it proposed to take Report Stage?

Mary Seery Kearney (Fine Gael)
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Now.

Pat Casey (Fianna Fail)
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Is that agreed? Agreed.

Pat Casey (Fianna Fail)
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When is it proposed to take Fifth Stage?

Mary Seery Kearney (Fine Gael)
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Now.

Pat Casey (Fianna Fail)
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Is that agreed? Agreed.