Martin Conway (Fine Gael)
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I welcome the Minister of State, Deputy Burke, to this House.

Mary Seery Kearney (Fine Gael)
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I thank the Minister of State to taking this Commencement matter. Last July, we had a fantastic day here when the assisted human reproduction Bill was passed by this House having previously been passed by the Dáil. We had families in this Chamber, along with my own, who celebrated the fact that both parents of children had a way forward in getting the legal recognition they absolutely need and deserve in regard to the parenting and parentage of their children born via surrogacy. We understood at the time that there was going to be a time delay between this coming into law and the commencement of the Act. The regulatory authority needed to be established and there was work to be done by the Department of Justice to ensure the family courts were ready to receive all of the applications. Future surrogacy applicants need the regulatory authority in place. I completely understand that there was always going to be a time lag. Everybody understands that. Like Irish Families Through Surrogacy, I have kept in constant touch with the Minister, Deputy McEntee, to ask about the progress on the role of the Department of Justice. In that regard, we are absolutely assured that the courts are ready and that secondary legislation will be ready and in place for statutory instruments for amendments to court rules should they arise for the presentation of cases to the courts. In recent weeks, Irish Families Through Surrogacy has had conversations with the Department of Health that have reassured us that everything is running along perfectly in the Department. At the same time, representations are being made to Irish Families Through Surrogacy to the effect that no commencement date has been cemented into the future and there is no deadline by which the retrospective applications can be made. There is some toing and froing to the effect that this may be a Department of Justice delay or a courts delay. I spoke with the Minister, Deputy McEntee, as recently as last night. I also went down to the courts to make inquiries. I know it is in the Department of Justice and it is in the courts. I am anxious to know what exactly is delaying the prediction of a commencement date. We need this to be a priority in any future programme for Government. The policy memo with regard to further amending legislation went to the Cabinet and was approved by it, but within that there are requirements with regard to setting aside consents in instances where biological fathers may weaponise their power over children and may refuse consent to the mother or second father of those children to get their parental orders. That secondary legislation needs to come in and needs to be in place.We are left in a situation where we have no confirmation on when exactly this Bill will be commenced. Meanwhile, there are some families where a biological father has a very serious illness that could result in his death. There are other situations that could arise at any stage. Anyone could be run over by bus tomorrow; we have no means of knowing.

When will we be assured that the children born by surrogacy in this State will have a secure lifelong legal relationship with their second parent? The idea of kicking it to touch and wondering whether a particular individual gets re-elected or not, and turning this into a cloud space where we do not actually know and that this is a floating possibility is not good enough for the parents and families and, most importantly, the rights of children to have that legal relationship with both of their parents and to have that security cemented.

There is no reason we should have to wait for a regulatory authority to be established. In fact, it is a matter of family law and the applications to the court should be able to happen sooner rather than later. Everyone has in their mind the date of 31 March. We could all live with that, but I want a guarantee from the Minister and the Government, before the Taoiseach goes to Phoenix Park, that these families will have certainty very soon in their future.

Colm Burke (Cork North Central, Fine Gael)
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I thank the Senator for raising this matter. I know she is very passionate about it and, in fact, has been instrumental in getting the changes about which she spoke. Unfortunately, the Minister, Deputy Donnelly, is unavailable to take this Commencement matter and has asked me to take it on his behalf.

I thank the Senator for giving me the opportunity to inform the House of the up-to-date position in respect of the Health (Assisted Human Reproduction) Act 2024, the upcoming second amendment Bill and the setting up of the Assisted Human Reproduction Regulatory Authority, AHRRA. I also thank the Senator for her continued commitment on this issue and, indeed, the insights and knowledge she consistently lends to debates and discussions on this matter and related issues.

As the Senator is well aware, the Health (Assisted Human Reproduction) Act 2024 was signed into law by the President on 2 July 2024 having passed all Stages in the Oireachtas. I thank the Senator and colleagues for their support throughout the Oireachtas process. The issues covered by the legislation have been widely discussed and examined, including on Committee Stage and Report Stage in the Dáil and by the special Oireachtas Joint Committee on International Surrogacy. Some of the issues that arose require further consideration.

The Minister, Deputy Donnelly, committed to bringing forward a supplementary Bill for inclusion in the Dáil's autumn legislative programme. Last month, the Government approved the drafting of this supplementary Bill based on a general scheme of what is proposed to be titled the health (assisted human reproduction) (amendment) Bill 2024. The Bill was placed on the priority drafting list. I am pleased to say that the formal drafting process for this Bill is under way. The drafting, led by the Office of the Parliamentary Counsel, is being conducted in conjunction with the Department of Health, the Department of Justice and the Department of Children, Equality, Disability, Integration and Youth. As is customary, the Bill will be subject to further consultation with legal advice from the Office of the Attorney General.

I will also point out that in parallel with this drafting work, intensive efforts are ongoing in respect of commencing the AHR Act, including with regard to the readiness of the Courts Service to begin hearing applications for parental orders for surrogacy and also the establishment of the regulatory authority. In this regard, the Courts Service has provided up-to-date information to advise that work is well under way on the rules of court for so-called retrospective surrogacy cases. Indeed, draft versions of these rules have already been circulated to the relevant Departments. It is hoped that a finalised version of these rules might be adopted before the end of quarter 1 2025 and subsequently transferred to the Minister for Justice for consideration.

The Act also, of course, provides for the establishment of the new regulatory authority, namely, the AHRRA. The AHR Act is complex legislation.The new authority, as the agency specifically responsible for oversight and regulation, will be central in embedding safe and appropriate clinical AHR practices and associated research activities in Ireland.

Work is under way in the Department of Health to enable the establishment of the authority as soon as possible. The early appointment of a chief executive officer and identification of suitable candidates for appointment to the board of the authority will be essential to drive the start-up phase of the organisation. These appointments will serve to implement the strategies, policies and procedures necessary to enable the authority to fulfil the statutory mandate provided in the Act. The process of identification of suitable candidates by the Public Appointments Service and State boards is likely to take several months to complete. The aim of the Department is to ensure the core team and statutory board are in place in the first half of 2025.

As the Senator is aware, the interim period refers to surrogacy arrangements undertaken between the commencement of the retrospective provisions of the AHR Act and the prospective provisions on domestic and international surrogacy. The potential option of commencing the retrospective provisions before the prospective provisions has been one that the three Departments have continued to explore in the context of ongoing intensive work by the Courts Service in respect of the establishment of the AHRRA. However, it is not possible to be definitive at this time about whether this will ultimately be the course of action taken. Therefore, as part of the formal drafting process, which has been and is complex, the three Departments, in conjunction with the Office of the Parliamentary Counsel, will continuously review this aspect to see what, if any, specific provisions have to be made in respect of any interim period that emerges from any final decision on the respective commencement dates.

Mary Seery Kearney (Fine Gael)
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I thank the Minister of State. With respect, he is not the Minister who is responsible for this. My remarks are not directed at him, but that response was an absolute load of twaddle. We were of the view that this would happen by the end of the first quarter of next year. If it is now to be inextricably linked not just to the appointment of a CEO to the AHRRA but also a load of officials, which will not happen before the end of the first half of next year, we are then looking at somewhere in the autumn of next year, at the earliest, before any families can apply for their retrospective parental orders. In the meantime, those families have children who are in precarious positions with regard to having a parent with whom they have a legal relationship for the entirety of their lives.

Commitments were made on the floor of this House by the Minister that there would be no delays with regard to retrospective applications. What I am hearing is an absolute and utter disgrace. It has misled people. The Department of Justice is not the delay here and neither are the courts; I know that for a fact. Officials are passionate about the establishment of this, but my child will be ten next May. There are children who are aged 13, 14 or 15. At this stage, we will not have parental orders for them before they turn 18. The idea that the two are absolutely linked and that the AHRRA has to be fully established before there are retrospective orders is completely contrary to everything the Minister said on Committee Stage in the Dáil and in this House. We are left with an open-ended situation that is utterly deceptive in bringing parents to this stage. Parents have been terribly misled. The level of anxiety out there in the community that they will never get their parental orders, and this will be kicked to touch for a number of years, is just appalling. It has to end.

My party has commitments going into its manifesto. I expect that everybody in the Government has the same. It is not dependent on any one individual that this has to be a priority for the next government. The response is unacceptable.

Colm Burke (Cork North Central, Fine Gael)
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I understand where the Senator is coming from. She has done a huge amount of work over a long number of years on this issue, which is important. It is also important that we cross all the t's and dot all the i's to make sure that there is no constitutional challenge. We are talking about retrospective orders, which are always a challenge in relation to anything that is done in the whole legal process.

The Minister is determined to seek a way to speedily and appropriately resolve the predicaments and uncertainties faced by parents of existing children born through surrogacy. It is completely understandable if these parents are frustrated in waiting for their opportunity to apply to the courts for a parental order.However, it has to be borne in mind that the lengthy and far-reaching assisted human reproduction legislation covers a wide range of activities in addition to surrogacy, including rapidly advancing areas of medicine that require regulation. The consensus view of the Ministers, Deputies Donnelly, McEntee and O'Gorman, is that the speed with which the legislation has been prepared, drafted and passed in recent years and will now be commenced, compares extremely favourably with other policy projects, many of which did not involve such significant changes in court procedures nor the setting up of a brand-new regulatory authority.

The Minister, Deputy Donnelly, wishes to reassure Senators he is advancing the commencement of this much-needed piece of historic legislation as quickly as possible in order to ensure the goal of providing for a route to formal recognition by the State of approved surrogacy arrangements is achieved and that a robust regulatory framework for assisted human reproduction more broadly is put in place.

I understand where Senator Seery Kearney is coming from, as I said earlier. I also understand that Departments have to be extremely careful about any constitutional challenge on this issue. In fairness, it is important that we get every part of this right. Perhaps assurances were given but if issues have arisen it is important that we resolve them in the best possible way and make sure everything is in order when the final process proceeds on each and every one of these applications.

Mary Seery Kearney (Fine Gael)
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I understand this but, with due respect, it is not about a plinth moment for any Minister promising families they will have their legal assurances. A promise like this has been made with a commitment on time and this has been reneged on.

Martin Conway (Fine Gael)
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We all agree with Senator Seery Kearney and acknowledge the massive amount of work she has done in this area in recent years. I thank the Minister of State.