Monday, 30 March 2015
Seanad Éireann Debate
Chuaigh an Leas-Chathaoirleach i gceannas ar 14:30:00
Machnamh agus Paidir.
Reflection and Prayer.
Order of Business
Senator Ned O'Sullivan: This is my first time to be in this privileged position for eight years. I assure the Leader that we on this side of the House will not be opposing the Order of Business today. However, I wish to mention a few things, although I do not wish to be controversial as I am not in the form for it.
When I raised a matter in the House last week, the Leader advised me to table a Commencement Matter. I was going to do so, but now that I have my chance I will raise the matter again. It concerns whole-of-life assurance policies. The amount of mail I have received since I raised the matter last week is incredible. My Fianna Fáil colleague, Deputy Michael McGrath, has previously raised it in the Dáil and I understand he has also been inundated with mail, most of it from people in their sixties and beyond. It concerns covering one's spouse and family following one's death. Many people took out such policies 20 years ago and invested, on average, €100 per month in the expectation that, following their death, their spouse would receive something in the order of €200,000. This provided great comfort for many and their families, but what would happen was never explained to those who took out such policies. After ten years the companies involved are entitled to review the position and can change the premium payable at will. The customer has no say in the matter. After a further ten years the companies involved can do it again and again after a further five years and again after a further five years. If a person is lucky enough to reach the age of 70 years, it appears the companies involved can do so annually. I have a client who started off by paying €100 per month for cover worth €200,000. Twenty years later he is covered for the same amount, for which he is paying €850 per month. He is trapped and has already invested about €50,000. These policies have no surrender value and there is no investment aspect to them. Most people have stopped paying for them, but the money goes straight into the hands of the company involved.
Senator Ned O'Sullivan: It is one on which I have received a lot of mail and I must tell the truth. The Minister for Finance, Deputy Michael Noonan, is quite sympathetic, if one sees his response to Deputy Michael McGrath. He believes, however, that the hands of the Financial Ombudsman are tied on the issue, but I am not so sure. Given his stature, will the Leader bring this matter directly to the attention of the Minister?
Senator Ivana Bacik: Will the Leader arrange a debate on the issue of domestic violence following the launch of the report this morning by SAFE Ireland on lawlessness in the home? I was honoured to be invited to launch the report for SAFE Ireland at the Royal Irish Academy. Powerful testimony was given by a survivor of domestic violence and others who had worked on the report. There were some important findings on the inadequacies of the criminal justice and policing system with respect to how we dealt with domestic violence. Some very important recommendations on reforms were also made. The report builds on the work of the Oireachtas justice committee which produced a report last October on the issues of domestic and sexual violence. Other colleagues in the House and I were involved in the compilation of that report. There is also the Garda inspectorate's report from November 2014 which pointed to how policing practice should be improved in dealing with cases of domestic violence. I, therefore, ask the Leader for a debate in early course on domestic violence and, in particular, the recommendations made in the SAFE Ireland report.
Senator Sean D. Barrett: I note the negotiation by the UK Secretary of State for Health, Mr. Jeremy Hunt, on an agreement on a meningitis B vaccine with GlaxoSmithKline which acquired the vaccine just three weeks ago. Will the Leader suggest to the Minister for Health that its use be considered in this jurisdiction? We have one of the highest rates of meningitis in Europe and the arrangement has been welcomed by Mr. Jim Wells, the Norther Ireland health Minister. There may be an opportunity to tackle a disease which causes such distress and death for small children and their families.
I note the measures today from the seven universities in the State to attract more students from Northern Ireland. Education in the cause of the peace process is always something to be supported and commended.
It is a tribute to the debates we have had on the Order of Business in this House that today we see that 54% of people would vote "No" to any acquisition of Aer Lingus by British Airways or International Airlines Group, IAG, while only 24% would vote "Yes". Of the people who would vote "No", 50% of Fine Gael voters would vote in such a way, 54% of Labour Party voters and 58% of Independent Member voters. Some 62% of Sinn Féin voters would vote against such a deal, with 66% of Fianna Fáil voters. Today marks the opening of the Edward M. Kennedy Institute in Boston. Last evening the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, paid tribute to Mr. Edward Kennedy. With former President Carter and Professor Alfred Kahn, he had made airlines in the United States compete when they wanted to collude. That is an example we might follow in this jurisdiction. Now that we know that approximately 700,000 people watch the Oireachtas TV channel, we know that debates on the Order of Business have helped to shift public opinion away from a very strong campaign in favour of acquisition. I thank the Leader and the Cathaoirleach for this. It will be the subject of a Commencement matter tomorrow. Taking account of the plan for aviation on outer offshore islands, it is very important that we make airlines compete when they want to collude.
Senator Colm Burke: There has been a matter in the newspapers in the past few days, with pharmaceutical industries claiming 500 job losses because of Government policy on reducing the cost of drugs. It is important that we provide the right information, that in 2000 the cost of pharmaceuticals to the health boards was €570 million and that by 2008 and 2009 it had increased to over €2 billion. We could not allow this to continue and if we had allowed such a pattern to evolve, we would now be paying a further €1.2 billion on top of the €2 billion we were already paying. We introduced legislation in this House on the use of generic drugs and have had to come from a position where in 2013 only 10% of drugs used were generics. In the United Kingdom the usage rate was approximately 80%. As a result of that legislation, the level of generic drugs used is now at 48%, which represents a major increase. I am not saying we should go down the same road as the United Kingdom to get to an 80% rate, but we certainly need to bring down the cost of pharmaceuticals. In doing so we can bring on-stream new drugs that could be helpful. The media seem to have been attracted to the argument that 500 jobs have been lost, but it does not give the true picture that we have had to deal with to ensure we can continue to provide the health care service we want to provide. However, we must reduce the cost of drugs even more. My understanding is that this year the bill will be approximately €1.8 billion, which is still not low enough. We should certainly be working to bring it down further.
Senator Trevor Ó Clochartaigh: Tacaim leis an moladh atá déanta ag an Seanadóir Bacik go mbeadh díospóireacht againn maidir le cúrsaí foiréigin bhaile. Is ceist í atá ardaithe againn go rialta sna Tithe seo agus is ceist fíorthábhachtach í. I also welcome the launch of the SAFE Ireland report this morning. Last Friday in Galway Domestic Violence Response launched a billeog as Gaeilge on issues surrounding domestic violence. That debate will be very important. We should note that the Government has severely cut back resources for domestic violence response organisations and that part of the issue is that these bodies are suffering from a lack of resources to deal with the ever-increasing number of telephone calls and representations they are receiving.
Senator Susan O'Keeffe: I support Senator Ivana Bacik in her call for a debate on the issue of domestic violence. We were struck last week by the detail of the murder trial that was ongoing which was indicative of what we did not know about people's lives. Nevertheless, we do know about domestic violence. Many people suffer in silence or behind closed doors, but we are aware of the matter which has been raised in this and the other House. There have been various meetings held, but we still seem to have stalled in dealing with it. When it comes to taking action to change somebody's life or do something about the matter, we seem to move into a different space where the issue of domestic violence is treated as a nuisance or a problem to be solved between an individual couple and where the apparatus of the State has nothing to do with it, but nothing could be further from the truth. The continuing work of SAFE Ireland with domestic violence centres across the country, specifically in lobbying and conducting research, is obvious every time it produces a report and it is up to us to keep the issue alive in the Seanad. We are not going to solve all of the problems here, but we need to show that we believe that those involved in dealing with the subject need our continued support. It seems, however, that we have made very little progress, not just from a legal perspective but also from a societal perspective. It seems to be an issue we just do not want to grasp. We have grasped the nettle of child abuse and other issues, but it seems this issue is beyond us, or at least is one we want to keep beyond us for some reason I do not quite understand. I would very much welcome an early debate on it, in which we might perhaps specifically consider the findings made in the report rather than the detail of domestic violence. We must consider ways by which the law could be expanded and added to.
Senator Feargal Quinn: Yesterday the British Government announced it was going to dissolve parliament and hold an election next month. Although normally that would not attract a huge amount of our attention as we look on from a distance, the Conservative Party has stated it is its intention to hold a referendum on Britain leaving the European Union. That would have a huge impact on Ireland, not just on business, tourism and exports. It would probably mean passports would be required at the Border between Dundalk and Newry. I do not know if we have given any thought or attention to the implications of such a decision. While it would not happen immediately as the Conservatives would have to win the election and then the referendum, it is frightening to think about the implications for us from a business point of view and in terms of how we manage our own affairs.
It also arose during the week that we did not have the ability to identify jets that flew along the west coast because we did not have long-range radar capacity. I do not know if we need it and the cost would probably be huge, but there are reports that Russian aeroplanes have been coming into Irish territory in recent times. We want to make sure we have taken at least some precautions to ensure we are protected. Some years ago there was a candidate in the Danish elections. He was not elected, but he did very well by arguing that, instead of having a Danish army, the country should have a huge gramophone with a huge voice saying in Russian, "We surrender, we surrender, we surrender." That was one way to solve its problem. Iceland also decided that it did not need an army, that it was going to use the United States army. I am not suggesting any of these is an answer from our point of view, but let us make sure we have protected ourselves in whatever manner is the correct way to do it. This issue will become much more important if Britain decides to leave the European Union and we find ourselves on a little island isolated from the rest of Europe. I suggest to the Leader that we have a discussion on this issue in the near future.
I also raise the issue of a vaccine for meningitis, which was raised by Senator Sean D. Barrett. Ireland has the highest incidence of meningitis in Europe. Ms Siobhán Carroll who founded the campaign group Act for Meningitis, with her husband Noel - they are from Oranmore, County Galway and sadly lost their four year old daughter Aoibhe to meningitis in 2008 - has welcomed the moves made in England in this regard. The national immunisation advisory committee has recommended similar measures be put in place here and the Department is looking at a cost-effective agreement with the manufacturer. I concur with my colleague, Senator Colm Burke, on the need to bring down the cost of medications and welcome the negotiations that are taking place.
Senator Gerard P. Craughwell: I, too, support Senator Ivana Bacik and the call for a debate on drugs, particularly biosimilars, relatively new drugs which would save the country tens of thousands, if not millions, of euro. As a new grandfather, I also support the call for the making available of the meningitis vaccine. At €300 a pop in a private capacity, it seems ridiculous that the State will not step in.
I remind the House that the teachers' conferences start next week. We are in a particularly turbulent time with teachers and it may be opportune to call for a debate on the establishment of technological universities. It is the case that almost all of the institutes of technology have voted to take industrial action should the process continue, but for the life of me I cannot see why we have embarked on this route. The institutes of technology have a task to carry out in the regions. We already have seven excellent universities and do not need new universities, although there is probably a case for having one in the south east. I ask the Leader, at his convenience and after the Easter conferences, to arrange to bring the Minister for Education and Skills to the House for a debate on technological universities. I can see no way how the project can move forward without the co-operation of staff who have deep concerns, not least of which is the lack of consultation.
Senator John Whelan: I support Senator Colm Burke's call for a debate with the Minister for Health on the issue of pharmaceuticals and the cost of drugs. Big pharmaceutical industries were busy last week in peddling their propaganda and trying to suggest jobs were being lost owing to the Government's policy on purchasing. Will they tell us how many people have lost their lives or have had their lives damaged as a result of their pricing policies? The cost of medicines continues to be exorbitant and we need to explore why that is the case. It is absurd that people are going on holidays to Spain and bringing back a six-month supply of medicines. While I am a full supporter of the vaccination and immunisation programmes, we have to be very careful. We had a situation in the case of the pandemics and swine flu vaccine where the HSE made the terrible error of indemnifying GlaxoSmithKline from any responsibility. Today, families are living the terrible consequences of that decision, with children having contracted narcolepsy. It is an important debate that we need to have.
I commend the Minister for Communications, Energy and Natural Resources, Deputy Alex White, for signalling that he intends to bring a memo to the Cabinet tomorrow to ensure large sports events of national importance such as the Six Nations rugby championship will remain free to air and not be put up for grabs by the highest bidder. I would also like to see the Minister discuss the latest - it was not a U-turn - about-turn of somersault proportions by EirGrid in the roll-out of the national grid. Senators Denis Landy and John Kelly and many others across the floor have said we do not need to double the capacity of the grid or destroy the country through the erection of thousands of new pylons. Now all of a sudden Thomas Edison has come back into the EirGrid boardroom to tell it that it can undertake expansion and upgrading without Grid Link or Grid West. Apparently, we can have underground power lines in County Mayo but not in counties Laois and Meath. Does the technology require one to have the Taoiseach in one's constituency? The people of Ratheniska are entitled to the same rules and fairness from EirGrid. We need to know why it did this about-turn. We need to see exactly what is going on in terms of energy policy.
Senator Terry Brennan: A concern of mine for many years has been the national Tidy Towns movement, with which I have been involved since the early 1970s. I am trying to encourage the Department to get involved. I cite a lack of consistency on the part of judges in the national Tidy Towns competition. Depending on the judge involved and whether he or she visits once or twice, one can be lucky. I call on the Minister for the Environment, Community and Local Government to come to the House for a debate on the Tidy Towns groups throughout the country and their contribution for more than 50 years in more than 800 towns and villages making them nicer places for residents and visitors alike. Their contribution helps to beautify their surroundings every year. I call for a debate on the issue of early judging, as some places are judged before plants are in bloom. More judges are, therefore, needed. National Tidy Towns groups are prepared to contribute if the Department is prepared to provide matching funding to increase the number of judges. Some 20 judges covering the entire 26 counties is not sufficient. It is necessary to recognise the difficulties experienced by some of the voluntary groups throughout the country.
Senator Aideen Hayden: Last Friday the Department of Social Protection published a report on the rent supplement scheme which recommended that rent supplement limits not be increased on the basis that it would accelerate the rate of rent increases in the market. That is patent rubbish because rents are increasing in Dublin by 10%, some indices by 15% and in the rest of the country at different levels. They are predicted to rise by 20% in the next 12 months. The real question is whether rent supplement tenants can access properties in the market at current rent supplement rate. The answer to that question is no. What is happening as a result is that people are finding themselves homeless. I, therefore, ask the Leader for a debate as a matter of urgency with the Minister not only on the most recent report but on the future of the rent supplement scheme. Much concern was expressed in the media at the weekend by a number of homeless organisations which regard this matter as urgent, given that about 200 families are living in hotels and that the position will get much worse. The Department cannot wash its hands of the matter in the way it has attempted to do.
I call for a debate on the wind-down of NAMA and, in particular, the Project Cobalt style initiative where NAMA is planning to off-load remaining blocks of apartments within the M50 ring. Unfortunately, they will be off-loaded to purchasers of blocks of 20, 30 and up to 150 units, which is ruling out the selling of individual units to young people who want to enter the home ownership market. It begs the question as to what role NAMA is playing in the housing market, in particular in limiting access to individuals to home ownership.
Senator Mary Moran: I draw attention to two wonderful education events in Dundalk which have taken place since Friday. This morning I had the pleasure and honour to present certificates to more than 100 graduates of the National Learning Network, NLN, in Dundalk. It was brilliant to be there. I commend the Education and Training Board and the HSE which provided the funding for the programmes aimed at people who have suffered a personal setback or are unable to get back into the labour market owing to an accident, disability or ill health. It was wonderful to hear some of the graduates speak about their achievements and say how they had never thought in their wildest dreams they would get this far. I congratulate them on so doing.
I also congratulate the local ETB school, O'Fíaich post-primary college, which last week was announced as the overall winner of the Sky Sports Living for Sport competition in Ireland and the United Kingdom. It is, therefore, champion of the British Isles. There was wild excitement in the school when the announcement was made on Sky Sports News last week. Some 22 students attended the prize giving ceremony in London at the weekend. Given that more than 1,700 schools took part in the competition, it makes the recognition of the school even more special. After it had noticed an increase in behavioural problems and that students lacked motivation and self belief, the school decided to participate in the project to encourage goal setting to raise motivation levels. By the end of the ten week period all 19 students involved had improved their level of attendance. One student, whose level of attendance was only 20% before becoming involved, did not miss one day during the project. This highlights what can be done in education to motivate students to get the best out of the education system.
Senator Paul Bradford: I agree with Senator Aideen Hayden, first, on the genuine crisis in the house rental market and the difficulties with the rent supplement scheme and, second, the argument in regard to NAMA which, in a sense, feeds the problem and is part of the solution. I dealt with one or two cases in which individuals who were attempting to purchase properties from NAMA found it difficult because, for some reason, the agency appeared to be trying to sell an entire portfolio of properties. From a housing policy perspective we should try to engage in dialogue with NAMA to ensure that where genuine housing applicants are in a position financially to purchase, they will be deemed to be priority clients. That would help from a housing policy perspective.
My second observation is not really one to which the Leader can respond. Officially the British general election campaign has started today following the dissolution of parliament. The date for the general election was flagged in advance, not by weeks or months but years. It is a sign of a mature democracy when for years in advance people know when the next general election will take place. There is a need for economic and political certainty, given that, as we have been advised, the general election will take place next February or March. We should all be mature and strong enough in our political convictions to cope with a campaign of seven, eight or nine months. It would be good, therefore, if at the earliest opportunity the Taoiseach and the Government gave advance notice that the general election will take place in February or March. The political establishment in Britain or British society has not collapsed simply because the people have known for the past three years when the next general election would take place. If we knew the actual date, we could have a mature and constructive debate with the public well in advance of the general election, not weeks before it. From the perspective of ensuring political certainty and engaging in political debate, it would be useful for everybody if the Taoiseach was to be specific in setting the date, whether it was in October, November, February or March. Nothing collapsed in the United Kingdom in knowing the date four years in advance and nothing would collapse here if we knew the date seven or eight months in advance.
Senator Michael Mullins: I join Senator Terry Brennan in applauding the amazing work being done throughout the country by the national Tidy Towns organisation. I would certainly welcome a debate on the issue in the House and would like to broaden it in order that we start a national conversation on how we protect the beauty of the countryside in order that the people can enjoy it, with the millions of visitors who come to the country each year. The huge amount of litter we see everywhere is a blight on the countryside and a sad reflection on us as a people. As I drove to Dublin this morning from Ballinasloe, the number of people working along the motorway gathering bags of litter that had obviously been tossed out of car windows by motorists was a sad reflection of what we thought of the countryside and how we regarded visitors to the country. We need to get real. This is a small country that depends very much on tourists and if we want to make the place attractive, we must rid ourselves of the scourge of litter throughout the country and along nice walkways and greenways.
I welcome the statement made by the Minister for Foreign Affairs and Trade on the Ibrahim Halawa case which was heard in court in Cairo last week. The Minister said Mr. Halawa's welfare in custody remained the primary concern for the Government and the Department and that there was extensive engagement on the case. Officials from the embassy attended the court and the presence of the ambassador was acknowledged because some of the media coverage gives the impression that the Government is not taking a sufficiently keen interest in the case. I encourage the Minister to continue the good work in order that this young man who most people firmly believe is totally innocent will soon be back with his family to continue his education at school. I applaud the embassy for the work it is doing and I hope there will soon be a very positive outcome to the case.
Senator Catherine Noone: I support the comments of Senator Feargal Quinn on the potential exit of the United Kingdom from the European Union. We all acknowledge that it would have far-reaching ramifications for all of Europe but particularly Ireland. Ireland is particularly vulnerable not only because it is the United Kingdom's closest neighbour but also because it is its largest trading partner. We will all follow the general election campaign which starts in earnest today and watch the outcome with great interest. It will obviously have a significant bearing on whether a referendum will take place. It is likely to take place because any political grouping that will come into power is likely to hold it such is the public's desire for it. A discussion in this House would, therefore, be useful. It would not just be a general discussion of the potential effects because we are all fully aware of them but also a discussion of what we could do to influence public opinion in the United Kingdom. We are obviously small in the context of the size of the population of the United Kingdom, but we should think about some useful methods by which we could somehow influence the debate there in the run-up to the referendum.
I support Senator Paul Bradford's comments on having fixed general election terms. It would be an excellent idea for the country. Much of what political commentators like to speculate on concerns when the Government will slip on a banana skin causing an election. Enjoyable as that may be, having fixed terms in the political system would make a lot of sense in the case of local, European and general elections and would result in far more certainty.
Senator Jim Walsh: Will the Leader arrange an early debate on crime levels? We have talked previously about the number of burglaries around the country, but they have a particularly insidious effect on elderly persons, many of whom live alone and are frightened to stay on their own after being burgled or when someone close to them has been burgled. It has a huge effect on the desire for independent living and not enough of a focus is placed on the issue. I do not think I have heard the Minister for Justice and Equality make any statement on it. We have become immune to the number of people killed in Dublin - shot dead on their doorstep or in their homes. As it is unacceptable, I would like a debate on it. It might help the Minister in taking account of the real effect on the citizenry of failures on the part of the State to deal adequately with these situations. There may also be a need for legislative changes. I noted in one of today's newspapers that the Garda was looking to ensure it would not be affected by the new penalty points system and that if gardaí were in pursuit of criminals, they could exceed the speed limits. It is lunacy to have a system under which criminals obviously have no regard for speed limits, while those in pursuit are inhibited in trying to catch them. I know that there are inherent dangers, but we must look at best practice internationally in that regard.
I have noted that the Leader has said the debate on No. 1 will start immediately after the Order of Business. That was not indicated to Members in the notice that was sent on Friday. Some Members have put considerable work into the Bill. I am here, but others are not here and they are extremely anxious that the debate not take place until the scheduled time of 3.45 p.m. I propose an amendment to the Order of Business. I would not like to have to press it to a vote and would like the Leader to be amenable to scheduling the debate in accordance with the schedule sent to us. This is a reasonable request, given that Members are coming to the House today precisely to participate in the debate, and I hope the Leader will accede to it.
Senator Maurice Cummins: Senator Ned O'Sullivan, acting Leader of the Opposition, spoke about whole-of-life assurance policies. I agree with him in that regard. Carrying out reviews after ten years, particularly when no such indication was given when people took out these policies, is flawed. As the Senator said, there is no refund of moneys paid if a person forfeits after ten, 15 or 20 years. I agree with the Minister for Finance that the matter should be taken up with the Financial Services Ombudsman, but if he cannot solve the problem, legislation should be introduced if necessary because the people concerned took out policies in good faith and find halfway through them or 20 years on that they are costing them an exorbitant amount that they cannot meet. The Senator has certainly raised a very important point and I will bring the matter to the attention of the Minister.
Senators Ivana Bacik, Trevor Ó Clochartaigh, Susan O'Keeffe and Hildegarde Naughten spoke about the SAFE Ireland report on domestic violence. As Senator Ivana Bacik mentioned, the report builds on the work of the Oireachtas Joint Committee on Justice, Equality and Defence. I will certainly try to facilitate a debate on the matter as soon as possible.
Senators Sean D. Barrett and Hildegarde Naughten, among others, spoke about the meningitis B vaccine and the deal struck between the UK Government and GlaxoSmithKline. It has been suggested it will cost in the region of £40 per vaccine to make it available to everyone in the United Kingdom. I am sure the Minister for Health and his Department will try to negotiate a similar agreement with the drugs company as soon as possible.
Senator Sean D. Barrett also noted the findings of the poll which showed that 54% of people were against the acquisition of Aer Lingus by IAG. This matter has been raised on many occasions on the Order of Business and will be the subject of a Commencement matter tomorrow.
Senators Colm Burke and John Whelan spoke about the cost of drugs. Some of the drug companies suggest 500 jobs may be lost as a result of the reduction in costs. Tough luck for the drug companies. The level of use of generic drugs has increased from 10% to 48%, as mentioned by Senator Colm Burke, but we must work towards reducing the cost further. That is the aim of the Government. In the United Kingdom 80% of drugs used are generic. As the Senator said, we cannot aspire to reaching that figure in a short period of time, but we must see an improvement in the cost of drugs supplied by drug companies to the health system.
Senator Trevor Ó Clochartaigh spoke about the Centre for Independent Living and the need to ratify the UN Convention on the Rights of People with Disabilities. We should probably have a debate on this issue in the House. We had a similar debate on it last year.
Senators Feargal Quinn and Catherine Noone discussed the proposed referendum in the United Kingdom on the European Union. It certainly would have severe repercussions for this country if the United Kingdom was to decide to leave the Union. The Taoiseach spoke about his concerns on this matter at a meeting of business interests in Northern Ireland only last week. We are concerned about the matter. At this time, during an election campaign, it would be inadvisable to become involved in the affairs of another country, but it is certainly something to which we should return after the election.
On the updating of our radar capability to track down aeroplanes that may pose a threat to us, I am sure the Defence Forces are considering the matter. I will certainly bring it to the attention of the Minister for Defence, Deputy Simon Coveney.
Senator Gerard P. Craughwell has advised us that the teachers' conferences are coming up and that there are votes on taking industrial action by academic staff on the merger of institutes of technology, which is regrettable. We will have a Bill on technological universities brought to the House. It is not likely to be brought before it before the summer, but perhaps we might arrange a debate with the Minister for Education and Skills in order that we can feed into the process. I agree with the Senator's remark that there is a need for a university in the south east. Irrespective of the taking of industrial action, that process will have to continue as it is the only region in the country without a university and has suffered as a result.
Senator Maurice Cummins: Senator John Whelan spoke about the cost of drugs. He also supported the Minister for Communications, Energy and Natural Resources on the need to ensure large sports events remained free to air. He called for a debate on energy policy. We had a debate on that issue with the Minister at the beginning of the term. As there have been changes in the meantime in relation to EirGrid, perhaps we might try to get the Minister to come to the House again in the next term to discuss energy policy and the matter the Senator raised concerning EirGrid.
Senators Terry Brennan and Michael Mullins discussed the Tidy Towns competition. Senator Terry Brennan spoke about the need for more judges to combat the problem of early judging, as it was felt some towns might be favoured over others. Senator Michael Mullins raised the question of litter. It is disgraceful to see the amount of litter dumped from people's cars. They go about their business and throw whatever they have out of their cars. This is certainly contributing to the state of the country with the result that some roads are badly littered, but I do not know what we can do about it. Education, penalties and a carrot and stick approach are certainly necessary. I will try to arrange a debate with the Minister for Transport, Tourism and Sport on the matter.
Senator Aideen Hayden spoke about the decision of the Tánaiste's Department not to increase rent supplement and called for a debate on the future of the rent supplement scheme. We had a debate on 11 February on the private rental sector with the Minister of State at the Department of the Environment, Community and Local Government, Deputy Paudie Coffey, but we will try to have the Tánaiste come to the House to discuss the report on this matter prepared by her Department.
With Senator Paul Bradford, Senator Aideen Hayden also discussed the wind-down of NAMA. Selling off large blocks where individuals have no chance of securing homes is the wrong policy. We will try to have the Minister for Finance come to the House to discuss the matter with us.
Senator Paul Bradford spoke about economic and political certainty. I thought we had it. The Government has made a commitment to serve its full term to advance the policies that are securing our economic future and recovery. It will serve its full term.
Senator Maurice Cummins: Senator Michael Mullins mentioned the case of Ibrahim Halawa and the presence of the Irish ambassador in court, which is to be welcomed. The Government is doing everything possible to secure this young man's release.
Senator Jim Walsh spoke about crime. We had the Garda Commissioner at the justice committee last week, at which she gave a comprehensive report on her policing plan. Senators will be aware that there is quite an amount of legislation with which the Minister has been busy in the past few months. As soon as it is out of the way, she is quite willing to come to the House for a debate on crime.
Senator Jim Walsh: My point of order is that all Members should be entitled to have the same opportunities. I have somebody who is prepared to second the amendment formally, but because I was the last speaker, it is impossible for me to have a seconder.
An Leas-Chathaoirleach: I had called Senator Paul Bradford as the last speaker but then Senator Catherine Noone indicated that she wanted to speak. It troubles me that Senators decide to come in willy-nilly towards the end of the Order of Business and want to speak. To be courteous I allowed Senator Jim Walsh in. I understand his predicament, but as there was nobody here to second the amendment, it falls. The Senator cannot take a stance on the Order of Business.
Question put: "That the Order of Business be agreed to."
The Seanad divided: Tá, 28; Níl, 6.
Tellers: Tá, Senators Aideen Hayden and Michael Mullins; Níl, Senators Jim Walsh and Diarmuid Wilson.
Question declared carried.
Children and Family Relationships Bill 2015: Report and Final Stages
An Leas-Chathaoirleach: Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on it. On Report Stage each amendment must be seconded. Amendment No. 1 in the names of Senators Rónán Mullen, Feargal Quinn and Jim Walsh has been ruled out of order as it is in conflict with the principle of the Bill.
An Leas-Chathaoirleach: That is not allowed. I will not go down that road, otherwise we will be here until the cows come home. As I said, I reflected on and have looked at the ruling. I will not get into a debate on it because the amendment contravenes-----
Senator David Norris: May I just say in passing that it is a pity? I absolutely accept the Leas-Chathaoirleach's decision, but it is a pity the Cathaoirleach does not give reasons for rulings. I sympathise with Senator Jim Walsh on the issue.
An Leas-Chathaoirleach: That is not a point of order. I was very fair with the Senator last week. I will not allow this; otherwise, it will keep cropping up. I have been told it is the Cathaoirleach's or the Leas-Chathaoirleach's position to make a ruling and stick to it. I do not want to open up a debate on the matter.
In page 11, to delete lines 10 to 18 and substitute the following:" "DAHR procedure" means a donor-assisted human reproduction procedure, being any procedure performed in a Member State of the European Union including the State, with the objective of it resulting in the implantation of an embryo in the womb of the woman on whose request the procedure is performed, where -(a) one of the gametes from which the embryo has been or will be formed has been provided by a donor,provided that, where the procedure is performed in a Member State of the European Union other than the State -
This amendment is designed to ensure DAHR procedures carried out in other Europe Union member states would qualify for the purposes of the Bill and the parentage provisions and all the same requirements for information, consent, criteria for the clinics and so on would apply. It is to address a concern raised with me that the Bill is too restrictive in only allowing people to have procedures carried out in the Republic of Ireland. For example, it would preclude people from accessing services just up the road in Northern Ireland. It also potentially could fall foul of EU law in terms of being anti-competitive without good reason.
Minister for Justice and Equality (Deputy Frances Fitzgerald): The purpose of the amendment is to change the definition of a DAHR procedure in order that it would include certain procedures taking place outside the State, as the Senator said. The intended effect is presumably to allow the assignment of parentage under section 5 where a child is born in the State as a result of a DAHR procedure which takes place outside the State.
I considered this issue in the drafting of the Bill and received legal advice from the Attorney General on it because I was very conscious, as the Senator was, that when children are born through DAHR procedures which occur outside the State, we are effectively unable to assign parentage in section 5. The obvious difficulty is that there is no possible means of verifying compliance with Parts 2 and 3 of the Bill as we are now deciding that parentage will be assigned and consent will be given. If it is outside the State we do not have the authority to check the authorised officers. For example, the inspection powers of the Department of Health, or an authority in the future, are under section 1. They have no authority to act outside the State and to exercise their inspection powers. The Minister for Health does not have any authority to direct compliance by a DAHR facility outside the State. That is obvious and is a matter of law. This means the State has no means of safeguarding and securing the identity rights of children born through a DAHR procedure taking place outside the State and thus cannot purport to assign parentage under section 5. This problem is not unique to Ireland. Similar issues arise in other jurisdictions where couples undertake fertility treatments in one state and the child born as a result of those treatments is born in a different state. There are no easy or useful answers to clarify the parentage of these children. Where there is, for example, the donation of an egg and the mother gives birth in this country, she will be the mother under Irish law, as we saw in the recent court case.
I cannot accept the amendment because the State cannot provide the necessary guarantees to underpin identity rights, but I do have two observations to make in answer to the question. Several Senators mentioned last week that this underscored the need for a harmonised international approach to the issue of parentage in cases of donor assisted human reproduction in the interests of the intending parents and the children to be born. The Hague conference on private international law is undertaking an important project in examining these issues and will report on it, but it will take some time to come to fruition. As Senator Jim Walsh mentioned last week, there is a need for co-ordinated action at EU level to begin to discuss this issue to have a uniform approach. Although the parentage of children born in the State as a result of procedures taking place in other states cannot be assigned under section 5, the parents will have certain legal options. They may, for example, be able to jointly adopt the child under the amendments being made to the Adoption Act 2010 in order to secure their joint legal relationship with the child. This is important. It ensures there will be a path to parentage in the best interests of the child; therefore, there are options. The second member of the couple will be able to apply to be a guardian of the child with the possibility of becoming a full guardian. To repeat, where there is an egg donation and the mother gives birth in Ireland, she will be deemed to be the mother of the child.
Senator Averil Power: I thank the Minister for her response. I appreciate the challenge in recognising services that have been carried out overseas, particularly in such a sensitive area. That is why I did not draft an amendment to recognise services carried out anywhere in the world because that would have been very problematic. Instead, I restricted it to the European Union. I agree that there is a need for a harmonised international response, particularly in the European Union which has done some work in this area. Directive 2004/23/EC sets standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. There is a need, however, for more work to be done at EU level. Ideally, somebody accessing these services in any European state should be guaranteed a certain standard of service. All European citizens should also have the same rights to their identities as we are promoting here, the limited rights which the Minister has included in the Bill and the more extensive ones I would like to see the European Union guarantee some day to all EU citizens born through the use of assisted human reproduction, be it in this or any other member state. This should be a priority at European level to co-ordinate and protect the rights of all EU citizens.
I will not press the amendment. I wanted to raise the issue because it is important. I ask for the Minister’s reassurance that she will take up this issue at EU level with her counterparts and the Minister for Health. From an Irish perspective, he might consider it again in the forthcoming legislation on assisted human reproduction, having conducted more research with his European partners. There is a big gap in the legislation because this is a small country and people will travel to avail of services. It will be unfortunate if they are left in a situation of uncertainty and have only the option of adoption. I would prefer to see this area being properly regulated across Europe in a consistent way to safeguard everybody’s rights.
In page 13, to delete lines 6 to 8 and substitute the following:“(2) A child born as a result of a DAHR procedure shall have two parents.”.
It is clear to me that at the end of this process the Government will not have accepted a single reasoned amendment to blunt the radical agenda behind the legislation. This goes to show that it has no interest in protecting the right of a child to a father and a mother or even to two parents having a genetic link with the child they are raising. The legislation means that Ireland will now declare that it makes no difference whether a child's biological parents raise him or her or whether two men or two women who may or may not be related do so by design. We have moved well beyond regulation for children who have been conceived through this process. We are providing a mechanism to allow this to happen with increasing regularity in the future.
As I stated further in my Second Stage speech, we should have a Bill dealing with donor-assisted human reproduction issues. Indeed, the Minister has consistently referred to forthcoming legislation from the Minister for Health. Why, then, are we rushing this law through without such rules first being established in law? The reason is, of course, that the Bill is tied to the referendum. It is about normalising access to reproductive technology to new groups of adults or, in some cases, single adults before we have even set out the wider ground rules.
Every section of the Bill deserves to be rejected precisely because it is so reckless around children's rights and dignity and it is so manipulative in its timescale, in its political conception and in its delivery in these Houses.
Senator Jim Walsh: Before I start, I ask the Leas-Chathaoirleach for a ruling. We received a letter which prohibits us from naming anybody in the Seanad. That is a breach of our constitutional right. I accept fully-----
Senator Jim Walsh: On a point of order, there are a number of persons from whom I will quote. It is unfair to those on the other side who might like to rebut my points if I do not name the authors of the statements I am giving.
Senator Jim Walsh: I support the amendment on the basis that it reflects, as I am sure it did, what was intended in amendment No. 4, that the two parents shall be a father and a mother. That conforms well with all of the amendments which I put down and pressed on Committee Stage, and, consequently, could not re-enter here.
"The State ... does little or nothing to face a situation in which one-third of children are born outside marriage.
That is from somebody who would be disposed to the Minister's party and has been in the past.
the persistent insinuation that biology is an arbitrary or inconsequential aspect of parenthood. Politicians, commentators and "experts" tell us that what matters in child-rearing is solely the quality of the "love" on offer and it is time for us to overcome our "obsession" with biological parenthood.
The Minister made this point. Where does that leave her when polyandrist, polygamous, trouples and other group time-limited marriage relationships come about, many of which may be loving, caring relationships? On the basis of the Minister's criteria, she will have no defence when they come knocking on her door to extend marriage to them.
[I]n many other jurisdictions legal parenthood arises automatically from biology, Irish jurisprudence identifies rights between parents and children as deriving from legal ties defined under the constitutional provisions governing the married family. ... but [here we acquire] such protections only if his or her parents are married to one another. ... Under our Constitution, a married family enjoys a high degree of autonomy, having rights that are inalienable and imprescriptible. In recent times, there has been growing dissatisfaction and protest concerning this constitutional way of seeing things, in part because it excludes from full constitutional protection unmarried families, now accounting for a third of all Irish families with children.
The Minister is looking after approximately 230 - she stated the figures - whereas the hundreds of thousands who do not live within married couples will have no constitutional underpinning. It goes back to a point that I made on Committee Stage, when I put a question to Senator Katherine Zappone. There are other ways in which what the Minister is trying to achieve could be tackled but what she is doing, in the manner in which she is approaching this, will have detrimental effects for both children and society as a whole in the future.
Senator Jim Walsh: The person who took them to task and sought to have their business boycotted stated, when his first child was born, that "It will break my son's heart to realise he hasn't got a mother."
Senator Jim Walsh: -----said in the Dáil in 2010 that "Every child has a right to a mother and a father and, as much as is possible, the State should vindicate that right. That is a much more important right than that of two men or [two] women having a family." All of this apparently is being abandoned for reasons which I would like-----
Senator Jim Walsh: -----he would know the basis on which I am supporting it. He can ask the proposer of it if he intends that it be a mother and a father. My interpretation of it is that this is what is intended by the reference to "two parents".
There is overwhelming evidence against what is being done here. Everybody knows it is being done for a singular reason, namely, to assist the referendum. My reason for objecting to all these sections dealing with the donor-assisted human reproduction is that it should have been on hold for much greater in-depth conservation, debate and analysis, including the effects on children in all the different strands of the diversity of families. The Minister is very strong on the issue of diversity, but in the referendum she is trying to change this. This particular one challenges that notion and I would qualify it by saying that not all family types have the same outputs in general for children. That is not to say children cannot be raised well in the various diverse forms of family, but children are at greater risk within some more than others and all the socio-research shows that they perform best in the married family.
Senator Jim Walsh: The British Journal of Education, Society & Behavioural Science covered an interview survey by the National Health Service carried out between 1997 and 2013 and it makes various points about children raised in same-sex couples. I will not go into the detail of it other than to make this point which is worth noting. The study's author - it names the author - assessed "the variety of different hypotheses about the differences, including comparative residential stability, experience of stigma or bullying, parental emotional problems ... and biological attachment. Each of these factors predictably aggravated children's emotional health but only the last of these - biological parentage - accounted for nearly all of the variation in emotional problems." By removing the biological and natural ties between the child and their mother and their father is highly dangerous. It will have serious adverse outcomes for many children, although not for all.
Senator David Norris: I hope this will not be continued in a tedious way. I would make a few observations on the amendment. First, it is rather God-like. It is emitting some kind of God-like statement from a cloud. It states: "A child born as a result of a DAHR procedure shall have two parents." Biologically, of course, they do.
Senator David Norris: It is not. As I said, the amendment is rather God-like. Attempts were spoken of to restrict scientific practice and so on and all these amendments, which we were supposed to discuss together, have one thing in common - they seek to restrict. One of the contributors said that parent fathers are pursued through the courts for maintenance money and why are they not doing anything about the sperm donors, but it is a blob of sperm - get over it. I do not see that there is any particular reason for this.
The protection of children was invoked. Where were the people concerned during the civil partnership debate when the rights of children were consistently violated by exclusion from that legislation? I spoke out about it. I did not hear any of these other people; not one of them spoke about it once, in fact, they seemed to be quite pleased. A child born as a result of a DAHR procedure will have two parents, if it is a same-sex couple, a cohabiting, a married couple or whatever. The only time they will not is when a single parent is adopting and a single parent can do it already. They can do it already. It is a tiny number who are involved.
One can take a different view of the impact of legislation, but it is disgraceful for a Member of this House to say the Government and this legislation are anti-child. It is an outrageous claim to make that the Minister and the legislation are anti-child. There is no reason for this. That is what we are told, with a rictus of a smile, is respectful debate. I do not think there is anything respectful about accusing the Minister or the Government of being anti-child. That is the way in which language is controlled during the debate and it is very offensive and bullying. I do not like the tone and do not think it should be part of this debate.
Senator Fidelma Healy Eames: The ruling of the Chair to the effect that nobody's name should be mentioned is ridiculous because to make a substantive point, one should be able to cite a source. Those reading the Official Report in the years to come will see these points being made without any substantiation. That is very poor practice.
Senator Fidelma Healy Eames: I accept that making disparaging remarks about each other is out of order, but I ask the House to revisit that ruling. I was thinking about this Bill over the weekend. It covers six main areas of law and is significant legislation. For the first time in this country, it sets up a donor assisted human reproduction, DAHR, industry. This should have been provided for in a separate Bill. How can I vote for this Bill? I want to vote in favour of guardianship, custody and access of children and the extension of maintenance to children. I do not necessarily agree with everything being done in respect of donor assisted reproduction simply to facilitate an impending referendum. It is putting the cart before the horse. The issue of DAHR should have been addressed in a broad ranging Bill on assisted human reproduction. If we are genuinely interested in facilitating DAHR for married and cohabiting couples with infertility problems, why did we not do so earlier? Why have we waited until weeks before a referendum on same sex marriage?
Senator Fidelma Healy Eames: Ideally for two parents. Everything we are doing is supposed to be in the best interests of the child. If we are acting in the best interests of the child, we will do our best to give him or her a mother and a father. That is in his or her best interests. I am not saying that is always practicable, but it is in the best interests of the child. It is not right to say biology does not matter. We all know about the joy and fun around likeness, image and comparing who one's son or daughter resembles. It includes shared habits, interests and throwbacks to previous generations. We are now robbing children of this. In my family I have not had that joy because I adopted my children. However, I have had it in my birth family, as well as my broader family. I fully accept that it would have been in the best interests of the children I adopted to have been raised by their birth parents. Adoption comes into the picture only when this is not possible. We are now deliberately creating the family through donation, but let us do so in the best interests of the child by preparing a stand-alone Bill. It is outrageous that we have lumped all of this in with the other areas I mentioned.
Senator Jim Walsh spoke about a young woman who had been reared by a same-sex couple. Her mother decided to be a lesbian when the child was at the age of two or three years and then the father left. She became a strong advocate of gay rights, but now that she has her own children she feels she was denied her father. The father obviously moved out of the household and disappeared, but the relationship did not facilitate her having a mother and a father.
Senator Jillian van Turnhout: I do not support the amendment. We have had a long process of pre-legislative scrutiny to get to this point. The Bill is very much based on children's rights. We are at last providing for a regulated framework, which means that children's rights will be extinguished if we do not bring forward this legislation. That is why I believe the Bill is centred on children's rights, including the right to an identity, the best interests of the child and continuity of care. I could continue, but I stated my position the other day. We know from research that security of belonging and knowing is essential for a child. That is what the research shows clearly and the legislation is a first step. I would like it to go further to vindicate and uphold children's rights, but I will not contribute to extinguishing them, which is what I think would be the effect of many of the amendments proposed.
Deputy Frances Fitzgerald: I thank Senators for their contributions. I would like to return to the reality for between 400,000 and 500,000 children in Ireland today. The Government's commitment to the Child and Family Relationships Bill 2015 is in the context of demographic data which confirm that more children than ever are living in diverse family situations. It is important that we consider the reality of children's lives. With this Bill, we are legislating for the diverse family situations in which children find themselves. We are giving them and their parents stability within the scope of the law. This is the first time in legislation that a child's best interests have been spelled out clearly in terms of the various criteria that need to be taken into account when a decision is being made about children. There is no question of creating a new fertility industry. We are regulating an issue. As to why we should legislate for assisted human reproduction, AHR, and donor assisted human reproduction, DAHR, why not? In 2005 the commission on AHR stated this matter needed legislation. When drafting a Bill on parentage, child and family relationships and creating greater stability for diverse family types, one must address this issue. This is not about same-sex marriage. According to the statistics, most children born through DAHR are born to opposite-sex married couples. That will remain the case. Only a minority are born to same-sex couples. The parentage of all of these children is being resolved through the Bill. For example, the presumption of parentage for a husband is rebuttable. This is one of the issues we are addressing.
I will revert to the statistics, but I referred to the cultural change that was needed in terms of openness and the range of other issues related to this matter. The Bill is incredibly child centred. Under it, we must have clear rules on consent in DAHR and information, that is, children knowing their biological origins. We are creating a situation where clear information must be available. The position is unregulated and a child has no right to information on his or her biological inheritance. We are changing this and moving in a child-centred way from anonymous to identifiable donation. This is in the interests of the child having access to that information. The golden thread running through the legislation is child centred. It is not about parental rights but a child's parentage. That is clear from what I have have been saying.
Deputy Frances Fitzgerald: We are only regulating one issue in respect of AHR. Clearly, broader legislation is required. Last week I outlined the range of issues involved. The Bill is the appropriate place in which to regulate the issue of parentage. It is the right thing to do for children who are born through DAHR. Such children are being born, but they do not have legal security in their families. We are dealing with that issue. The Government stated it would address the needs of children in these circumstances.
Regarding children in diverse family types, let us revert to some points made. There were 215,000 lone parent households in 2011, the latest year for which we have full statistics. There were 4,000 same-sex couples living together. Some 66% of the 115,000 divorced or separated women were living with their children. There were 49,000 households with cohabiting couples with children under 15 years of age. The number of children living in households headed by cohabiting couples increased by 41% between 2006 and 2011. Do we want to discriminate against these families if they want to have children using the technology of AHR and DAHR that is available to them?
Deputy Frances Fitzgerald: In the Bill we are regulating and making it clear that, in circumstances of AHR, the child's best interests demand that we move from the current postion which is unregulated and where anonymous and some identifiable donations are being used to one in which that information will have to be available and there will be clear consent. The issue of consent is unregulated and we do not have information on donors. That we are moving away from this position means that it is child centred.
Let us consider the research. While there are different research findings, some of the most comprehensive longitudinal studies, for example, the European study of assisted reproduction families, an in-depth study of children aged six, 12 and 18 years, have found no differences in emotional or behavioural problems between donor-conceived children and those conceived naturally. That is what much of the research shows. A number of Senators stated the key factor was good parenting, not family type. Children do well in married families and with cohabiting couples.
Deputy Frances Fitzgerald: The factor one considers when considering the best interests of the child is the quality of the parents and the relationship. One does not discriminate against or set up a hierarchy of family types.
Deputy Frances Fitzgerald: One legislates to put the best interests of the child at the centre and, from a public policy perspective, provide as much stability for the different family types as possible. The Bill is only one aspect of supporting families. Undoubtedly, children in all family types need a range of supports. No one more than I will call and work for the development of family support services in order that children can have good parenting and, where there are difficulties, early intervention. That is necessary.
In terms of discrimination, the amendment potentially would deprive single women of the chance to fulfil a much desired wish to become mothers. Acceptance of the amendment would serve to restigmatise lone parents and suggest lone parenting was unacceptable. The country spent decades talking about doing away with references to "illegitimate" children. We fought hard to get rid of the discrimination that impacted on these children. Why would we use this legislation to start a new hierarchy of family types instead of dealing with children's diverse situations and doing the best for them in terms of stability in parenting and supporting parents? Where a woman gives birth to a child, under Irish law she is the mother. Marriage continues to be constitutionally protected. Nothing in this legislation will change that protection. Constitutional protection also remains for children in married families. The question in the referendum will be different, in that it will be about extending the right to marriage.
We are discussing the 300,000 people with fertility or subfertility problems. Some might choose to use AHR, while others might choose to use DAHR. We are debating how to regulate this issue in order that their children can have stability and the chance to be reared by loving parents. Some Senators have an opposition in principle to DAHR and are expressing their disagreement with it on the floor of the House. That is the position they have taken. The Department of Health is introducing comprehensive AHR legislation which will address a wide range of issues. In this Bill, however, we are addressing the parentage issues in Ireland which impact on children and their families. We are doing it in a way that is extremely child centred. The legislation has not been rushed and nor has it been delayed; rather, it is overdue. That is precisely what the Commission on Assisted Human Reproduction stated in 2005. This is an area in respect of which regulation is needed.
Senator Rónán Mullen: The Minister seems to be of the view that if one states often enough and at length that something is child centred, this will somehow make it so. I have been involved in debates on one other issue in this House in respect of which I was on the same side of the argument as people who support the Bill before us. I refer to the debates in respect of the legislation relating to human trafficking and the need to prosecute those who purchase sex.
Senator Rónán Mullen: One hears the same kind of argument in respect of the issue to which I refer, namely, that if we regulate the position, make everything legal and create an industry, this will somehow make it woman centred. We are starting to win the argument to the effect that it is not woman centred. When one regulates something, very often what one is doing is endorsing it and creating a demand in respect of it. That is why it does not matter how often the Minister refers to the hundreds of thousands of children living in non-traditional family situations. The legislation before the House is not about them except in the context of the aspects which relate to making provision for guardianship, a move which I and, I am sure, all other Members support. The legislation is not about the 90% of assisted human reproduction cases either. Rather, it is about all of the circumstances in which the Minister is contemplating certain children - upfront and in advance - of the right to be brought into the world by their own father and mother or to have a father and a mother.
It is all very well that the Minister continually states that everything involved is child centred. I am sorry but that is just more of the culture of spin that is bringing politics in general into disrepute. To some extent, it has also brought the Government into disrepute in the context of this issue. If the Minister's approach really were child centred, then it certainly still would have put in place the sections of this Bill which recognise the right of guardianship and other rights which operate to the benefit of children in various situations. However, she would be prohibiting the provision by clinics of donor-assisted human reproduction because this contemplates the deprivation of a child of his or her links with his or her father or mother or both. If one wanted to develop an item of child-centred legislation, one would regulate to support children who are already in the world and provide for their relationships with their parents. However, one would also make this country a cold house for those who would deprive other children of their rights in this regard. That is why I state that the Minister is engaging in spin.
The Minister also engages in spin when she uses language which indicates that she does not want to set up a hierarchy of family types, that she does not wish to re-stigmatise lone parents, etc. By implication, she is stating that this is what the implications under discussion would do.
Senator Rónán Mullen: What the Minister is failing to do is to acknowledge any of the best research which goes to show that there is a particular social benefit associated with children being brought up in marriage. I am in no way being judgmental of others in this regard. On many occasions I have referred to the heroism of lone parents, in particular. We also acknowledge, however, that many such individuals require additional support and we should give it to them. The idea that lest one be portrayed as being judgmental, one should have nothing to say regarding the body of research which states that - all things being equal - it would be better if children were raised within marital families really speaks volumes about the culture of spin.
This is not about setting up a hierarchy of family types; it is about the State and society preferring particular situations and proposing this in the laws that are brought forward. It is also about the State regulating to prevent that which it can prevent, namely, an industry that brings children into the world in a way that deprives them of their father or mother or both. Where that situation cannot be prevented - life gives rise to all sorts of situations - the State should move in to support the individual families involved. That to which I refer would give rise to a true child-centred balance and it would not lead to lone parents being re-stigmatised. Instead, it would lead to such parents being supported and it would also promote the right of every child, as far as is practicable, to have his or her own father and mother in his or her life.
I do not understand why the Minister felt it necessary to revisit the situation of hundreds of thousands of children. Nobody is placing their situations at issue. We are saying that, as would be the case with any other item of legislation, account should have been taken of what the research shows. Why is the Minister afraid or unwilling to do this? Why is it that, in the context of this issue alone, the Government is not interested in evaluating what the research shows? It has gone in the other direction and painted a dystopian picture of certain traditional married families by highlighting the obvious point - as if we did not all already realise it - that some of these families fail. There is no such thing as the perfect family and no one is claiming that there is such an entity. However, saying that does not give one the right to blind oneself to the reality that the research does tell us something about families. The Government has never acknowledged in the course of the debates on the legislation before us that there is something to be said for the family or for the father and mother relationship with children. I must reiterate the fact that it is anti-child to so willfully ignore the research to which I refer and to make no accommodation for it in the context of the framing of policy. I am opposed to those who pretend that if accommodation is made for it, then we are somehow stigmatising other people. That is sheer intellectual dishonesty and it is also socially reckless.
In page 13, after line 36, to insert the following:“(9) The intending parents of a donor-conceived child must undergo counselling prior to their initiation of DAHR.”.
Senator Trevor Ó Clochartaigh: I thank the Minister for her patience. I will not delay her long on this amendment which suggests the phrase "The intending parents of a donor-conceived child must undergo counselling prior to their initiation of DAHR." be inserted into the Bill. The decision relating to this matter is huge for those involved. As we have already discovered from today's debate, there are many aspects to DAHR which an intending couple might not have discussed in full before making their decision. We are of the view that quite a number of clinicians would agree with our opinion on this matter. It is essential that people should appreciate all of the ethical and legal elements before deciding to proceed with the initiation of DAHR. I hope the Minister might take the amendment on board.
Deputy Frances Fitzgerald: This is one of those wider issues relating to assisted human reproduction which remains fully within the remit of the Minister for Health, Deputy Leo Varadkar. As the Senator is aware, the Minister is advancing policy proposals in this area. Those proposals will address issues regarding who may access treatment. In the context of measuring long-term outcomes, counselling of individuals or couples considering or planning treatment clearly comes within the Minister for Health's area of policy responsibility. I indicated on Committee Stage that his proposals which were recently approved by the Government include requirements to the effect that people availing of all forms of assisted human reproduction, and not just donor-assisted fertility treatment, should undergo counselling in advance of treatment. The Bill the Minister for Health intends to bring forward is the appropriate mechanism under which to establish standards relating to counselling. It will also stipulate the type of counselling that will be offered and the qualifications those offering such counselling will need to possess. On Committee Stage, an interesting point was made to the effect that counselling should be offered by individuals who do not have an association with the clinics but I do not know quite how one would ensure that this would happen. All of these matters will be dealt with in the context of the legislation to which I refer. Already the Government has agreed on the proposals from the Minister for Health that counselling would have to be undertaken by everybody. In fact, as I informed the House last week, that is the situation, that there is counselling, but clearly what Senators want is that this would be on a statutory basis in legislation. I support that position and it will be dealt with in the broader assisted-human reproduction, AHR, legislation.
In page 14, line 4, to delete "18 years" and substitute "21 years".
The amendment seeks to require that a person would have attained at least the age of 21 years instead of 18 before consenting to the use of his or her gamete. It is connected with amendment No. 9 which would require the certification that counselling has been received by the person in regard to the donation of his or her gametes.
Senator David Norris: I have just a few observations to make. One can get married, go to war and vote at the age of 18 years. I do not see why one cannot become a parent. If, as Senator Rónán Mullen said, there are all kinds of indigent students wandering around who are prevailed upon for small amounts of money to provide those samples, that suggests, as I suggested, that there is a fairly tendentious link between a sperm donor and the child. That seems to be pretty obvious. If one just donates sperm for a few bob because one is an impecunious student, I do not see that there should be such a close relationship. I do not agree with the amendment.
Senator Fidelma Healy Eames: The point at issue is maturity. Senator David Norris has mentioned more than once in this debate that it is a blob of sperm and we should get over it. Where the blob of sperm is put is what is important. The sperm has all the DNA to allow one to become a father. There is a fair bit of responsibility attached to this. One must give due deference to the young people who may be enticed to donate. In other countries there are advertisements such as "Your country needs you" and "Save the human race". Young people are made to feel that they are doing something brilliant. Let us at least allow them to become mature. I do not intend to say what age is the right age but 18 years is very young. If being 21 years makes a difference then we should look at increasing the age of consent to 21. As I indicated when we discussed the matter last week, on the other side of the coin the mother who would carry the donated embryo is expected to be 21 years. We should level the playing field.
Deputy Frances Fitzgerald: The purpose of amendment No. 8 is to raise the minimum age of a donor to 21 years. It appears to be to match the minimum age of intending parents. However, the basis for setting different ages is not arbitrary. The age of 18 years is set for a prospective donor on the grounds that he or she is of full age and has the capacity to consent both to any necessary medical treatment and to give full legal consent in relation to assignment of parentage. That said, I am advised by key stakeholders that it takes up to a year or more to recruit suitable donors given the clinical requirements for medical screening and counselling, and in the case of women the medical interventions required. For the most part, donors will be somewhat older than the minimum age established but I do not think it is necessary or appropriate to set a higher minimum age. By contrast, the age of 21 years is set as a minimum for intending parents on the basis that the Department of Health advises it takes three years to arrive at a diagnosis of infertility, although I accept the points made by Senator John Crown on, for example, some of the patients he has treated where it would have been obvious from a much earlier age that a person would be infertile. Thus, if an adult is seeking to become a parent at the earliest stage of adulthood, it will take at least three years to have a diagnosis of infertility which would indicate donor-assisted human reproduction. It is for that reason, not on the basis of presuming a greater level of physical or emotional maturity, that 21 years is set as the minimum age for intending parents. I cannot accept the amendment.
In page 14, between lines 6 and 7, to insert the following:"(d) provides appropriate documentation certifying that they have received independent counselling on the implications of donating his or her gamete(s).".
The Seanad divided: Tá, 4; Níl, 32.
Tellers: Tá, Senators Rónán Mullen and Feargal Quinn; Níl, Senators Aideen Hayden and Michael Mullins.
Amendment declared lost.
In page 15, line 17, to delete “desirable” and substitute “mandatory”.
This is the amendment that relates to the interaction between the operator of a donation facility and a gamete donor whose gamete shall be used. The operator should inform the donor that instead of it being desirable that it keep updated information on the register, it would be mandatory to do so. This goes to the heart of the issue of how seriously the Government takes a child's rights in this scenario. Everywhere in the Bill we see regulations being made on clinics. The requirements are actually very weak. The sanctions are also either very weak or non-existent in the event of a failure. This is just another example; in this case, it is merely desirable, not mandatory, to keep updated information on the donor on the register. If we were to look at this issue through the lens of the child and his or her right to his or her identity, we would not be talking about it being desirable to keep updated information on the register on the person providing the gametes; rather, we would be talking about it being mandatory to do so and would be much more prescriptive in our approach to clinics.
The Minister has consistently argued that the Bill has very much been constructed with the best interests of the child in mind. That is not credible, but this is a test for her which will prove that either I am wrong and she is right or that she is wrong and I am right. That it is desirable that we update the register means, in effect, that it is not in the best interests of the child, given that it will be at the discretion of the donor. If the Minister really wants the legislation to be in the best interests of the child - I have tabled an amendment on that matter - there is no doubt that it should be mandatory to update the register. It will be imperative for a child in the future to be aware of the position on, for example, the health of the donor. Any attempt to make it optional clearly illustrates that the Bill is all about adults rights and has very little to do with the best interests of the child, which I contend is the case. The Minister will either confirm or deny this in accepting or rejecting the amendment.
Senator David Norris: I do not think this amendment is practical; it is simply a matter of practical realities. This is to do with sperm donors and I do not believe all of them will keep the information updated. I have to deal with the Trinity register in terms of the election-----
Senator David Norris: -----and an enormous amount of the mail we send goes missing because the people have changed address or whatever else. It is desirable to update information, but I do not believe we can make it mandatory. That would be foolish. I do not see specified anywhere - this would be more helpful - the information that is to be kept on the register. Presumably, this will be done by regulations, but it would be helpful if the Minister indicated in general terms the information that is to be kept. This would also give us a better idea of whether it could be made mandatory. I do not believe it can, as I do not think it would be practical to do so.
Senator Fidelma Healy Eames: If this was to be mandatory, we would have to enforce it. Unless it is included in legislation now, it could not be enforced. It will only be enforced where there is a hereditary illness. There is no doubt that this is the least best possible scenario for the child. We spoke about whether the Bill was child-centred or otherwise. Setting up a donor register is child-centred, but is it in the best interests of the child? It is not. Having a mother and a father is in the best interests of the child. Everything is relative. It may be desirable, but we are going on somebody's word. I am an adoptive parent. We met the birth mother in advance of placement. We were asked for certain reports during the lifetime of the child, which we have provided, but it was based on someone's word. It was not based on law and it was not based on something being mandatory. People will differ, but if we were to opt to make it mandatory, we would have to enforce it. If it was not adhered to, what would we do then? However, the hereditary illness aspect is very important. If a donor discovers, after a donation has been made, that there is a hereditary illness in his genetic family that may have been pass on to the child, how will this information be discovered? It could be a matter of life or death.
Deputy Frances Fitzgerald: Amendment No. 11 would require a donor to update his or her contact details on an ongoing basis. However, there is no clear method to enforce this, the point made by Senator David Norris, and no sanction if the donor fails to do so. If, as part of the donor information to be provided, we provide that it is mandatory to update details and the donor fails to do so, it could mean that his or her consent is not wholly compliant with section 6. Thus, for reasons entirely outside the control of the intending parents of the child, the donor's failure to update his or her contact details could be interpreted as meaning the donor's consent was void or uncertain and, therefore, could affect the legal parentage of the child. That would be a perverse and completely unacceptable result and would be seriously prejudicial, I believe, to the best interests of the child concerned.
The approach I am taking is in the best interests of the child concerned. At present, we know that it is easier to trace people on the level of information which is now going to be required - the name, date of birth, address at time of donation and nationality. That information will have to be provided whether donation is made in Ireland or in another jurisdiction because the donation will not be acceptable in Ireland if that information is not made available in the other jurisdiction. The reason I made the provision is that I believe it is desirable that a donor update his or her information but I cannot see a justification for making it mandatory nor any way to enforce such a requirement.
Section 24(3) outlines the details of the information that needs to be given and provisions to enable updating of donor information on the register will be made by the Department of Health, under regulation. If a donor has given consent and one has the name and they have been informed of all the issues in relation to parentage, as provided for in the Bill, it is far more likely that the information Senator Fidelma Healy Eames is speaking about would be made available. In the first instance we are moving from a situation where no information is available to many children, whereas now because of the consents and the identifiable donation, all of that information is available, unlike the current position which is unregulated.
Senator Rónán Mullen: It is ironic that the Minister should use the word "perverse" in terms of identifying the potential consequences because, of course, what is perverse running all through this is the complete lack of regard for the child's rights in the whole story. Clearly the intent of the Bill is to place the minimum imposition on Lars from Denmark or whoever it is that may provide the donor gamete or the clinics also. When bad legislation is brought forward one can find oneself in a situation where the best one can do is specify that certain things shall be desirable. This is because one has strayed so far from the child's best interests in what is being provided for that it is not surprising that one is tying oneself into knots. That is exactly what this legislation does, it ties reality into knots and it creates situations where it is nearly impossible to vindicate the best interests of the child. I agree with the Minister that it would be very difficult to police making such information mandatory. I have no doubt the consequences stated by the Minister would follow but all of that is simply to illustrate how wrong is the approach being adopted in the first place. I remind the Minister that it is within her power to legislate against the possibility of donor assisted human reproduction, precisely because of the incursion into children's rights that it contemplates.
In page 23, line 30, to delete "any".
This amendment was discussed on Committee Stage. In the event of legal costs I suggested to the Minister there was no need for the word "any". Perhaps the Minister might share with us again her intriguing reason there was no need for the word "any" before travel costs and medical expenses but there was a need for it before legal or counselling costs.
Deputy Frances Fitzgerald: The Senator will probably accuse me of saying the same thing again, but he asks the same question. The amendment would remove the word "any" from any legal or counselling expenses. This has already been discussed on Committee Stage as the Senator said. I explained then that the amendment would alter the nuanced meaning of the phrase which is intended to convey that in certain circumstances legal and counselling expenses may not arise, such as where the donors have already had counselling because they have themselves been undertaking assisted human reproduction. I have nothing further to add to that explanation.
In page 23, to delete all words from and including "that- " in line 37 down to and including line 38, and in page 24, to delete lines 1 to 3 and substitute the following:"whether the procedure was performed inside or outside the State,".
These amendments are grouped and designed to allow the courts to assign parentage in cases where somebody was conceived through AHR prior to enactment of the Bill, inside or outside the State. As I pointed out on Second Stage, the current situation is not satisfactory. Following implementation of the Bill, children conceived in Irish fertility clinics with the assistance of donor sperm will automatically have their intentional parents legally recognised. Children conceived in foreign fertility clinics, or in Irish clinics prior to the enactment of the Bill, with the assistance of donor sperm will have the opportunity for a court to have their intentional parents legally recognised but only if the identity of the donor is unknown to the intentional parents, so not if known sperm was used. Those conceived in the past with known sperm, even where the donor stated categorically and had an arrangement with the intending parents that the individual was just donating and had no intention of being a parent, are not covered by the Bill.
Senator David Norris: I am very happy to second the amendment. This is a significant amendment as there is a gap in the provisions as they stand. I spoke about this previously and have received correspondence from parents who are either in or expect to be in this situation. The courts should have the right to assign parentage in this small number of cases. One mother who is expecting to find herself in this situation told me that the golden thread that existed in all other cases was missing in hers and this was a cause of grief to her. I am happy to support the amendment.
Senator Jim Walsh: Senator David Norris referred to a "golden thread", which is a very good term to describe the natural and biological link between a child and its actual parent. It is something which should inform the whole of this Bill but, unfortunately, the Minister has decided to go in the contrary direction and treat it as if it is totally insignificant. The points made by Senator Averil Power are correct. We held debates in this House many years ago about children who were adopted and there was consensus on all sides. I think the Minister shares our views that every effort should be made to assist adopted children to make the link to their natural parents. I support the amendment.
I fully support the non-anonymity provisions but worry that they could lead to the unintended consequence of people preferring to go abroad. I can see all the difficulties in policing this and know that some provisions will make it more difficult on the parenting side, but I ask the Minister for Justice and Equality if the law could be applied in such a way as to make it illegal for people to go abroad and accept anonymous donations, while allowing non-anonymous donations. I would like to explore this because otherwise there will be a huge disparity between those who get their donor assisted procedure here and those who go abroad but come back to give birth in this country. People are very mobile nowadays but we could have arrangements with other countries to enforce such a provision in our legislation. I suggest this purely in the interest of the child's right to access the identity of its natural parent. We touched on the subject on Committee Stage, but we did not receive a satisfactory answer from the Minister.
On another point, the Institute of Obstetricians and Gynaecologists and some psychiatric groups have raised concerns that children who get information about their natural parents at 18 years or above may suffer a traumatic effect and may be better getting it earlier. I do not put myself forward as an expert in this area but the arguments these people have put forward are plausible. A case has been made in this context for anonymity, which I do not support, but it is imperative we get the legislation right. I am afraid that those children who cannot access information because people have gone abroad for anonymous donations or because it is not available until the age of 18 years will feel traumatised and suffer challenges from the point of view of their identity. If children are too young, they will not be able to absorb the information; therefore, the best method is for parents to gradually prepare children over the years by giving them the information they can absorb at the appropriate stages. I would like to hear the Minister's comments on these points.
Senator Fidelma Healy Eames: These are interesting amendments. I am glad to hear Senator David Norris talking about the blob of sperm as being a "golden blob of sperm" or was it a "blob of golden sperm"?
Senator Fidelma Healy Eames: Are we trying to establish the identity of a donor who would have made a donation on the basis of remaining anonymous? If so, can we legally do this? Can we legally enforce something where anonymity was part of the terms of the contract at the point of handover? It is important that every donor knows the power and the potential of what they are doing but I do not think a person who makes an anonymous donation of sperm or gametes is thinking of being a parent. They are not, yet the donation leads to a child so there is a huge responsibility in the donation process. Can we enforce our rules in other countries who do not have similar rules? Can we do something through the European Union? Can we request the information on file in a clinic which facilitated the donation where the donor at the time did not wish to be identified and only made it on the basis that it would be anonymous? I do not know much about this, but do we know the motivation of people to donate anonymously?
Deputy Frances Fitzgerald: The purpose of this group of amendments appears to be to expand the effect of the retrospective provisions allowing assignment of parentage in relation to pre-commencement donor assisted human reproduction procedures. For clarity, I want to address this issue in detail and to set out the provisions that apply because this is a very important issue. The parentage of a child born through donor assisted human reproduction can be assigned in the Bill under section 21 or section 22 where the following conditions are met: the child was born in the State; the donor assisted human reproduction procedure took place in the State; or, if it took place outside the State, the person or the facility which carried out the procedure held any necessary licence or authorisation required under the laws of that state to do so. I stress that this is about retrospective assignment of parentage and does not relate to the regulations that will be in place as a result of this legislation.
The next criterion is that the person who is to be declared a parent was an intending parent at the time the procedure took place and the donor was not, and is not, known to the intending parents. I will go into detail on why that is the case; there is a very good legal reason. At first glance, one might question it on the grounds that it seems strange and that the donor could only be unknown. The reason for setting out these conditions is that I am clearly advised that parentage cannot be assigned if a procedure was not carried out in accordance with any law applicable in another jurisdiction or if a person can clearly and legally be identified as the parent of the child concerned. This is why my provision also stipulates that the donor must have been and remain unknown to the intending parents. Our existing legal framework does not recognise sperm donation and, therefore, if the sperm donor's identity is known he is legally considered to be the father. There is already Supreme Court case law on this point, and this is why it is not possible to provide retrospective recognition where the donor's identity is known. However, where the donor's identity is known and all the adults concerned are in agreement, the intending parents still have a route to parentage, by means of adoption. Senator Averil Power commented on that issue. Adoption is an option if the proposed adoption is in the best interest of the child and all the conditions one would expect to be met, in terms of adoption assessment etc., are met.
Let me turn to the amendments proposed. Amendment No. 26 amends section 20 to specify that it applies to whether the DAHR procedure takes place in the State. It removes the requirement that the person carrying out the procedure must hold any necessary authorisation to do so.
Amendment No. 29 provides a much more extensive definition of the DAHR procedure, which would presumably include self-insemination in addition to a range of ancillary procedures. This would allow assignment of parentage in circumstances where a person undertakes procedures outside the jurisdiction that could be illegal in that jurisdiction. That is seriously problematic. My provisions will allow assignment of parentage if the procedure concerned takes place in Ireland. If it takes place elsewhere, the person who carries it out must hold any necessary authorisation.
With regard to the assignment of parentage, amendments Nos. 27 and 28 remove the stipulation that the donor be unknown to the intended parents both at the time of the procedure and at the time of an application under sections 21 or 22. I have touched on why this cannot be accepted. Legally, there is a very strong case. Under the current law, where the donor is known he or she is regarded as the parent of the child. This amendment is asking me to remove that individual as the parent of the child retrospectively. He or she cannot alter the child's parentage with retrospective effect by transferring that parentage through a process other than adoption. Adoption is the only process whereby that can happen.
Our provisions concerning the prospective assignment of parentage under section 5 have been specifically framed to require the donor to consent clearly in advance of the donation. The critical point concerns the donor not becoming the parent of the child. Senator Fidelma Healy Eames raised a number of points on this issue. The consent is necessary before donation in order that the parentage provisions in the legislation can be fulfilled. In our provisions, if the person does not so consent, he or she will be regarded as a parent rather than as a donor. That is why counselling is so important. These points were raised. The donor must fully understand the position. This area is completely unregulated. There is no counselling or discussion of the implications of the donation. Now that we are to have regulation in this completely unregulated area, we want the donor to be aware of the consequences for him in regard to parentage.
I have considered very carefully the provisions allowing retrospective assignment of parentage. They are very carefully balanced, on specific legal advice, to ensure the rights and responsibilities of natural parentage cannot be removed arbitrarily. These amendments would arbitrarily remove parentage retrospectively. One could imagine the insurmountable practical and constitutional difficulties of doing that. Where the parents of a child are clearly identifiable individuals, the retrospective provisions cannot be used. The only path to parentage for the intending parents in those circumstances is adoption. However, with the new consents, the move from anonymous to identifiable donation, the parentage provisions, counselling and a full discussion of the implications of what people are doing, parentage can be assigned. This is because one is building in legally all the criteria that need to be met. They are strong criteria in the interest of the child. One cannot remove the parentage retrospectively.
Senators will accept the constitutional reasons one cannot retrospectively remove parentage. With regard to future regulation, we are laying out very clearly the procedures that need to be followed. One should remember that this area is completely unregulated. Internationally, the move is increasingly towards the kinds of approaches we have taken in this legislation. The section in the Department of Health dealing with this matter is the bioethics section. It has examined very carefully international evidence. Anything I am doing in this legislation is in line with the policy that has been adopted by the Department of Health and that has been supported by the Government through the heads of the broader AHR legislation that is to be developed. I hope that is helpful in explaining why I cannot accept the amendments. I understand the circumstances Senator Power is trying to deal with but it is legally and constitutionally impossible to go in this direction retrospectively.
Senator Averil Power: It is important to be clear that we are talking only about situations that arose prior to the enactment of this legislation. The Minister referred to the possibility of recognising procedures that were legal such as self-insemination, but the reality is that such practices did occur in the past. Such circumstances arose where same-sex couples, for example, were prohibited from availing of assisted human reproduction services in clinics in Ireland and consequently made other arrangements. We must recognise the reality, irrespective of how a child came into the world. The rest of this Bill is based on that premise.
I appreciate that the Minister does not want to encourage the specified practices in the future. I support that but we must do our best for the children conceived in the past through DAHR. Irrespective of how they were conceived, we must try to provide certainty and supports to them. It is from this point of view that these amendments were drafted.
The Minister said one cannot retrospectively remove parentage. The word "parentage" is inappropriate where a donor is prepared to testify in court that he never intended to be a parent, that he does not now intend to be a parent and that he has never had any parental relationship whatsoever with the donor-conceived child. It is inappropriate where the child's actual parents, who might have been parenting the child or young person for many years before the issue came before court, are prepared to testify to their parental relationship with the child. To apply the word "parentage" and assign the associated role to the donor is inappropriate in these circumstances. It is important to point out that a donor of sperm, for example, has no constitutional rights, any more than an unmarried father has constitutional rights in Ireland. The courts have made it very clear that a sperm donor is treated in law as being akin to an unmarried father and, as such, has no rights. Therefore, I do not accept it is a constitutional issue. I accept there is a legislative issue but that the legislative position could be changed by alternative legislation such as the amendments we are tabling.
This is an important issue. The provisions are unfair to children who were conceived through assisted human reproduction using anonymously donated sperm. The rest of the Bill discourages anonymous donations and argues as to why they are wrong. However, the children who are going to be assisted by the legislation are those who are conceived using anonymous donations. For those born to known donors, nothing will be done in terms of parentage. I accept adoption is an option, but it is a more complex option and I do not accept it is necessary.
I appreciate the Minister has examined the issue and has come up with an alternative approach but that approach is flawed. I do not accept that it is constitutionally necessary for the reasons I have set out. The most important thing is what is in the best interests of the child. These provisions would only apply where everyone is prepared to go into court and attest to the fact that there is a clear arrangement as to who was and who was not to be a parent. The courts are best placed to make a determination on the best interests of the child in those circumstances.
Deputy Frances Fitzgerald: The Senator will see that these are basic constitutional points on who is considered to be the parent of the child. There is Supreme Court case law on the issue. The McD v. L. case makes it very clear that in a self-insemination situation, the man is legally the father. It is not possible to change the case law and there is very strong legal advice on this point.
Senator Averil Power: I do not wish to interrupt, but the Supreme Court was also very clear in that case that the father had no constitutional rights. It does not recognise under Irish law a de facto family in respect of the donor. The donor had no constitutional rights.
Deputy Frances Fitzgerald: However, the man was deemed to be, legally, the father. There is very strong legal advice on the point and that adoption is the pathway to parentage in these circumstances. I am conscious of the situation of families with donor-conceived children pre-commencement. I received many representations from Senators and Deputies on this issue. I examined it intensively and did want to stretch the limits of how far we could go on this issue. The provisions for retrospective assignment represent the limits of what can be done given the strong legal advice I have received. I received intensive legal advice on this issue. These are people's personal circumstances. People wrote to me about their situations and they did want to have parentage assigned retrospectively. However, it is only in the circumstances I have outlined that this can be done. For other couples, the pathway to parentage will be adoption. I understand the spirit in which the Senator is putting forward this amendment, but I have legal advice that states that constitutionally one cannot take away parentage in these circumstances.
In page 27, between lines 23 and 24, to insert the following:“(f) any inheritable diseases and/or conditions which are part of his or her medical history.”.
This amendment relates to the acquisition of gametes or embryos by the operator of a DAHR facility. The section will require them when acquiring donor gametes to acquire the information specified in subsection (3) in respect of the donor. This subsection currently prescribes the name, date of birth, nationality, contact details and the date on which the gamete was provided. My amendment would provide for the requirement that knowledge with regard to any inheritable diseases and-or conditions which are part of the medical history of the donor would also be subject to acquisition at that time.
Senator David Norris: I second the amendment. It seems that this is a very valuable source of information about inheritable diseases and genetic information. This information is much more valuable than the donor's current address and telephone number and so forth. This has a direct medical impact on the child and it is information which should be made available. I strongly support the inclusion of information on inheritable diseases and genetic conditions and so on. This is precisely the kind of information which is valuable to have and I commend Senator Rónán Mullen for tabling the amendment.
Deputy Frances Fitzgerald: I discussed this matter on Committee Stage. I will go back to the point I made then. The scope of the Bill is to vindicate the right of the child to his or her identity in order to underpin the assignment of parentage under section 5. I considered including medical information initially and going into all the detail. However, in discussions with the Department of Health, given the complexity of the area and given that it concerns medical information, I made the decision that it was more appropriately dealt with by that Department. Pending the development of the broader AHR Bill, I can assure the Seanad that the level of screening of donors is clinically robust, particularly from the perspective of genetic risks. I am informed that the risk of genetic disorder to children who are conceived by AHR and DAHR is much lower because there is such screening at present. Comprehensive medical histories are taken from prospective donors and their donations are screened. Donors who have genetic conditions which would pose a risk to a child are not accepted. The level of screening including screening for genetic conditions is robust so as to give good guarantees to the intending parents and to give the maximum protection to the child to be born through the donations.
I understand why Senators are suggesting this amendment, but I believe it should be dealt with in the broader AHR legislation. This issue would be more appropriately worked on and developed in that legislation. This position arises from my discussions with the Department of Health.
In page 27, lines 25 to 27, to delete all words from and including “(1) A” in line 25 down to and including line 27.
This section appears to preclude what could be termed the DIY donor-assisted human reproduction practice which currently occurs. The Minister has addressed much of this in her explanations on previous amendments. What provision will be made for the people concerned? It is my understanding that in the first draft of the Children and Family Relationships Bill, all donor-conceived children would automatically have had their intentional parents recognised as their legal parents. In the event of a dispute, there would be an opportunity for this to be reviewed by the court and decided in the child's best interests. This has been substantially altered in Part 2 of the Bill as finally drafted and there is, therefore, a very unequal treatment of donor-conceived children in the Bill.
Senator Trevor Ó Clochartaigh: I take it that this goes back to the case law outlined by the Minister. That is a point I wanted to raise. I ask her to take on board the amendment my party has proposed.
Senator Fidelma Healy Eames: The case made by Senator Trevor Ó Clochartaigh is interesting. The Minister will recall that I raised the issue of intra-family and inter-generational donations last week. It is a little different because it involved a friend. The Minister's response was that we would need another Bill to deal with that issue. She did not mention adoption to me and I wonder if there is a difference.
Senator David Norris: I understand from where Senator Trevor Ó Clochartaigh is coming, but I also have an understanding of the Minister's position which, I presume, is that she wants to regulate to ensure it is done properly and in accordance with best medical guidelines. I am interested in hearing what she has to say because I am divided in my mind, although I was happy to second the amendment in order that it could be discussed.
Deputy Frances Fitzgerald: This amendment would remove the requirement for a donor-assisted human reproduction procedure to be carried out only by a registered medical practitioner or a registered nurse. The aim appears to be that the parentage of a child born through a non-clinical procedure such as self-insemination would be recognised under the provisions of the Bill. As I have explained, the provisions of the Bill have been carefully designed to allow the assignment of parentage in limited and specified circumstances. A requirement that the treatment take place in a clinical context is an important element of the safeguards included. If wider provision were made for the assignment of parentage, other than on the basis of genetic connection, this could have significant consequences for the position of natural fathers.
In page 27, to delete lines 28 to 35, and in page 28, to delete lines 1 to 16 and substitute the following:"(2) A person shall not perform a DAHR procedure other than on the request of intending parents who are legally married to one another.
As we have addressed the core issues, I do not need to say much about this amendment. On Committee Stage I drew the Minister's attention to the laws of various countries which were more restrictive on donor-assisted human reproduction. Obviously, she knows my position that a child's rights are not vindicated once donor-assisted human reproduction is involved. I would be interested in hearing what consideration was given to the law in countries such as Germany, Austria and Italy which is more restrictive on donor-assisted human reproduction and requires the procedure to be restricted to either a married male-female couple or a male-female couple in a committed relationshp and why the Minister thinks these countries have these laws.
Senator David Norris: I will express surprise. I am not sure it is against the Standing Orders of the House, but there are two amendments which are alternatives which have been tabled by the same Senators. That seems daft. One should have one or the other. I do not see how one can have half a dozen. I would be interested in having a ruling on that issue. How many amendments can one have on the same issue and in the names of the same two Senators?
Senator Rónán Mullen: That is a separate question. To be of assistance to the Senator, perhaps the logic is that if one does not succeed with A, one asks for B and if one does not succeed with B, one asks for C.
Senator David Norris: This amendment would remove single persons, same-sex couples and cohabiting couples. It would be a dreadful intrusion into people's private lives. I do not understand why someone would want to poke his or her nose into other people's private lives in this way. It is odd. I am not in the slightest interested in other people's private lives, except in so far as it relates to the law. I do not understand why Senator Rónán Mullen wants to restrict the procedure because of a piece of paper. These are human beings and if they want to have children, the Senator wants to force them to get married. That is the insane argument that came about with Mr. Justice O'Higgins and a few of his confreres in the case I took in which they stated the criminalisation of homosexuality was necessary in order to force ditherers into the heterosexual camp. I do not think it works like that. I do not think all of the judges who signed it did either because one of them, within a month or two, gave a decision in a nullity case that, because one of the participants was gay, it was not a marriage. I do not understand this narrowness. It will not succeed.
Senator Jim Walsh: I assure Senator David Norris that I have no interest in poking my nose into other people's lives. What two men do in their own house or, for that matter, two women or a man and a woman is of no concern of mine and I do not believe it should be. The reason I support this amendment - I take it that "legally married" means marriage as we understand it, not what it might be following the referendum - is I am interested in ensuring the best interests of a child are preserved by having a father and a mother. There is a plethora of social research in this area, none of which was conducted in this country and all of which clearly illustrates that children do better in general in a range of areas, some of which surprised me, with a married couple than in all other diverse family types. That does not mean, however, that there are no other types of family in which children are quite happy and getting on well. We must operate on the basis of where there is the least risk to a child in a range of areas, including education. In that regard, all of the risks to which children are exposed are better dealt with if their parents are married. It is for this reason that I support the amendment. I have continually outlined my views on this matter for a decade or perhaps longer and do not believe I need to labour the point further.
Deputy Frances Fitzgerald: The amendment would ensure only married couples could jointly be the parents of a child born through donor-assisted human reproduction. It would specifically exclude cohabiting couples or civil partners from joint legal parentage of a child. This would go much further than establishing a hierarchy of family types because it would set out that the only family we would be prepared to recognise in respect of donor-conceived children was the constitutionally-recognised marital family. That would run utterly against the spirit of the Bill, which is intended to protect and support a range of family types and their children.
Deputy Frances Fitzgerald: Yes, but ECHR law in this area is evolving and many countries are reviewing their legislation. Some of the legislation to which Senators have referred was put in place quite some time ago.
Deputy Frances Fitzgerald: The amendment is problematic in terms of public policy and would have serious implications regarding the European Convention on Human Rights in that it would completely fail to recognise the right of non-marital couples to a private and family life. While convention jurisprudence in the area of assisted reproduction remains limited, it is likely that providing access to donor-assisted reproduction and legal assignment of parentage only to marital couples could be challenged. The evidence available does not support a contention that only a married couple can provide for the welfare and best interests of a child born through donor-assisted human reproduction.
Senator Rónán Mullen: It is very interesting that the Minister made reference to the constitutionally recognised marital family and proceeded to state the amendment went completely against the spirit of the legislation. It does go against the spirit of the legislation because the latter is all wrong from the point of view of respecting children's rights. I wonder, however, whether it goes against the spirit of the Constitution which recognises the family based on marriage.
The Minister referred to the amendment being problematic in terms of public policy. To what public policy is she referring? Is it the Government's agenda to denigrate the special relationship between a father and a mother and their child? The Minister referred to her concern about the possible clash between the amendment - were it to be taken on board and included in the legislation - and the jurisprudence of the European Court of Human Rights. She had nothing to say, however, about the spirit of the Constitution, as it stands. That sticks out a mile. There is a willingness to consider international trends of law when it suits us, but there is no willingness to take account of what might be required in terms of either the letter or the spirit of the Constitution. Nor is there a willingness to put any flesh on those words contained in the Constitution to the effect that "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". In the context of the legislation before us, it is difficult to imagine what the Minister thinks these words mean.
Senator Jim Walsh is right to insist that there is a body of evidence which vindicates the view that there is a special validity and complementarity to what mothers and fathers can bring to their children's lives. None of this is to denigrate all of the love, care and concern for best interests in families, regardless of how they are constituted. Nobody has ever denigrated this. However, we refuse to accept the Minister's one-size-fits-all approach. Perhaps it might be more accurately characterised as an "every-size-fits-one" approach. It is she who is willfully blind to the body of evidence which states fathers and mothers each bring something distinct to parenting. My amendment seeks to underline that point. It is regrettable that, in the context of the means by which we are going to allow donor-assisted human reproduction to be legal and will facilitate clinics which provide it, two core requirements were not insisted on in order to minimise the incursion into children's rights. These requirements are, of course, that - in the light of what the evidence shows - there be a father and a mother in all instances and that they be married to each other. The Minister has indicated that the position is evolving. What she is referring to in that regard is an evolving position in the context of policy and law rather than what constitutes best practice.
Deputy Frances Fitzgerald: The Bill will have no impact on the marital family. The existing protections will remain in place. The legislation is about addressing the needs of other families. On public policy and since the coming into force of the Status of Children Act 1987, we do not discriminate against children on the basis of their parents' marital status. That is the reality. Reference was made to the Government's agenda-----
Deputy Frances Fitzgerald: The Senator referred to an agenda, but I am discussing public policy. The public policy approach is to continue that which is encapsulated in the Status of Children Act 1987, whereby we do not discriminate against children on the basis of different family types.
Deputy Frances Fitzgerald: Our legislation supports the children of married families by promoting, in the context of marriage breakdown, their right to have a meaningful relationship with both parents.
In page 28, between lines 16 and 17, to insert the following:“(4) A person shall not perform a DAHR procedure unless account has been taken of the welfare and best interests of any child who may be born as a result of the treatment.”.
I will not detain the House long because we discussed the matter to which this amendment relates on Committee Stage. The amendment has been designed to introduce into law a provision similar to that which has been put in place in Britain. Again, we are facing into a brave new world scenario in the context of multiplex parenting and the various techniques employed in assisted human reproduction. In many instances, the desire of adults is to produce a child entirely from their own gametes, if possible, even in circumstances where it is not male-female parenting that is contemplated. We really do not know where all of this is going. There certainly seems to be a mentality in the western world that if it can be done, it may be done. The Government is proceeding quite rapidly down that road in this area also, with minimal regulation and disregard of what was traditionally understood to be the rights of children. I would have thought that given the uncertainty about what the future holds, in terms of technology, and the vested interests involved, from the point of view of those who provide assisted human reproduction services, they should be required in law at the very least "to take account". I realise those words are not massively prescriptive or demanding but the principle should be enshrined in law that they would be required to take account of the welfare and best interests of any child who may be born as a result of such procedures.
Senator Jim Walsh: I second the amendment. It is a straightforward and self-evident amendment because all it requires is that the people carrying out the procedure would have to take into account what they regard as the welfare and the best interests of any child. If that is not the case, there are other interests they will take into account and the child's interests is not factored into this at all, despite everything the Minister said. It is a minor but significant amendment from the point of view of placing some onus on the facilities to have regard to the well-being of the child, subsequent to the procedure and the birth of the child. I will be interested to hear the Minister's views. If she is not accepting the amendment, perhaps she might outline the reasons.
Deputy Frances Fitzgerald: I have gone into detail on this issue before and will not repeat it. The proper place for the best interests assessment for access to treatment is in the forthcoming AHR legislation.
In page 28, between lines 26 and 27, to insert the following:“(c) the operator of a DAHR facility is certain that the use of the gamete would not exceed the limit on the number of children who may be born as a result of donor gametes from one individual donor. That limit should be a maximum of three births per individual donor.”.
I presume the answer to the last amendment will probably be the answer to this one, which is kicking it for a touch. If introducing legislation, I do not understand why amendments which are very pertinent to its operation and to the procedures are not taken into account. That, in its own way, creates a risk. In this instance, the Minister indicated on Committee Stage that the Government has already agreed to limits on the number of children who can be conceived as a consequence of a particular donor. While a hard and fast decision has not been made on the actual limit, I believe a figure of three is reasonable. From what the Minister said the last day, I do not believe she would regard that as being unreasonable.
Deputy Frances Fitzgerald: We are introducing legislation to allow assignment of parentage under the Bill. The balance of AHR issues are being dealt with by the Department of Health. The clinical practice currently in the 13 clinics which operate here is three to four recipients maximum per donor.
Senator Jim Walsh: I am astonished to hear the Minister give that response because, effectively, what she is saying is that it is up to the facilities to make that decision. The Minister is neutral and does not care how many they produce. If the number is three to four currently, she should have absolutely no compunction or no reservation about accepting an amendment which will put a limit on a statutory basis. To suggest we leave it to the facilities and that, I hope, at some future stage the Government will get around to the setting limits is an abrogation of her responsibility and of our responsibility as legislators. I do not see any benefit in not accepting this amendment. It does not interfere with any intention the Minister has in regard to the Bill. If she cannot identify an obstacle for me, I will reconsider pressing the amendment, but I cannot see one.
An Leas-Chathaoirleach: As fewer than five Members have risen, I declare the question lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 29, after line 38, to insert the following:“(9) A transition period of 12 months, from the date of enactment, will be allowed for cases where patients have already selected or paid for anonymous sperm donors or have the donation currently in storage in Irish clinics awaiting use in treatment, to complete their treatment cycles.
The thrust of this amendment is that on page 29, the following text will be inserted after line 38: "A transition period of 12 months, from the date of enactment, will be allowed for cases where patients have already selected or paid for anonymous sperm donors or have the donation currently in storage in Irish clinics awaiting use in treatment, to complete their treatment cycles." The rationale is that Sinn Féin has been contacted by some of those working in donor-assisted human reproduction, DAHR, clinics who still have what appear to be valid concerns on this issue. They are concerned that current patients will be punished retrospectively by sections of the Bill. The first group consists of patients with anonymous sperm donors selected, paid for and currently in storage in Irish clinics awaiting use in the treatment. They are inquiring whether there should be some consideration for these patients to enable them to complete their treatment cycles as otherwise, I understand approximately 600 to 700 patients across Ireland will be prevented from completing their initiated treatment. A possible solution might be that initiation of new anonymous treatment cycles could be precluded from the date of enactment. The transition period of 12 months from the date of enactment in order to allow these patients to complete their treatment cycles could also possibly be allowed.
The second group of people about whom this amendment is concerned consists of those patients entering into anonymous egg donation within the past six months but where their embryos have not yet been created. It must be remembered that the egg donation process is not an immediate process from initiation to completion but can take up to six months and sometimes longer due to the fact that following donor selection, for medical or social reasons the donor may not be ready to start the process immediately. It is my understanding that numerous patients have initiated donor egg treatment cycles but the creation of the embryos is outstanding. By enacting this new legislation, it is this group of patients, who are several months into the process of egg donation, who could be precluded from completing their treatment. Again, a possible solution to this might be the initiation of new, anonymous treatment cycles, which could be precluded from the date of enactment. However, a transition period of 12 months from the date of enactment to allow these patients to complete their treatment cycles would be a reasonable concession.
As for the final subsection provided for in the amendment, the rationale is there has been one further area in which concerns have been raised by certain clinicians in respect of sibling treatment. The legislation allows for treatment resulting in a sibling child from an anonymous donor for a period of three years from enactment. However, if the patient has recently or is about to become pregnant, she will have a very small window of opportunity to have an attempt at a second child. Might it not be more reasonable to allow for three years from the birth of the first child or three years from the date of enactment, whichever of the two was longer? This could allow patients a longer timeframe in which to make an attempt at a second child up to approximately three and a half years between births, rather than being obliged to make the decision either to have two children within a three-year window or to not have a sibling child at all.
Senator Cáit Keane: I thank the Minister for being proactive on this issue and compliment her on the stand she has taken. Senator Trevor Ó Clochartaigh has outlined the amendment's three provisions and has made valid points regarding the commencement and how this might be handled. I acknowledge the Minister has met the various clinics that are worried about this situation, particularly for those who are in transition and who already have selected anonymous eggs that are in storage in the clinics or those who perhaps have initiated the process but where it has not been completed. In addition, in respect of a sibling child, three years is a shorter period and at a minimum, one additional year could be added in this regard also. The Minister, in consultation with the clinics, had mentioned doing something about delaying the commencement of this section to allow such a period of grace or transition to be afforded to those people in such a situation. The Minister might make a statement on the record to display her intentions on how this transition period could be effected to ensure that people who already had selected or paid for anonymous sperm donations or for whom the procedure already was initiated would be given that additional 12 months. In the case of a sibling and the three-year rule, after a child is born, the first and second of the next sperm donations may or may not be successful. If they are not, it could lead to being outside the three years afforded and delaying this section would facilitate a four-year period. The Minister might indicate how she intends to deal with that because amendment No. 42 is relevant to these concerns, to which she has listened.
Deputy Frances Fitzgerald: I thank Senator Trevor Ó Clochartaigh for tabling this amendment, which would provide for a transition period to allow couples currently undertaking donor-assisted human reproduction procedures to continue with their treatment and to facilitate an orderly move to the regulatory framework that is outlined in sections 2 and 3. I have already clarified the position on providing a transitional period. Certain explicit transitional provisions already are included, as the Senator noted, in sections 25(5) and 25(6). The provisions set out in section 25(5) allow a three-year period from the commencement date to allow a couple to have a sibling using gametes from the same anonymous donor. Section 25(6) is very important from a constitutional point of view. It stipulates there is no time limit for the use of an embryo formed before the commencement date, even where the embryo concerned was formed using anonymous donor gametes. This is in line with the constitutional protections in this regard.
I reconfirm my clear commitment, together with the Minister for Health, Deputy Leo Varadkar, that Parts 2 and 3 will not be commenced for a minimum period of one year from the date of enactment. This is to ensure, in the interests of the many couples undergoing the stresses of donor-assisted fertility treatment, that they and their medical teams can continue their treatment. This one-year period will provide at least the same transition period set out in the proposed amendment, which will enable couples currently undergoing treatment to continue with that treatment and will give clinics time to prepare for the new regulatory framework. This is a practical and pragmatic administrative solution to which I have given a clear commitment in order that there can be a seamless transition to a new regulatory framework, which is very important. On the basis of this commitment, I ask the Senator not to press the amendment.
Senator Trevor Ó Clochartaigh: I appreciate the Minister's reply and the comments made by the Senator who spoke on this issue. As I take her bona fides, I will withdraw the amendment by leave of the House.
In page 29, after line 38, to insert the following:“(9) (a) The operator of a DAHR facility commits an offence if he or she makes or permits to be made an appointment or any other arrangement for or on behalf of an intending parent or parents with a person or facility that provides anonymous gamete donation services outside the State.(b) A person who commits an offence under this subsection is liable—(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, and
This amendment is in a totally different spirit. It is not like the libertarian amendment about which Members have just heard, which to my mind would again completely disregard the demands of a child's dignity. I do not know if the following words ring a bell with the Minister:
Now if my wife is my grandmother, then I'm her grandchild
This was a song made famous by Brendan Grace and a number of others some years ago. It says a lot about the strangeness of this legislation that there are aspects both of what it contains and what it omits that bring this crazy scenario to mind. The Minister may remember the lines:
It sounds funny, I know but it really is so
What was set out in a humorous song becomes vaguely possible in the light of the provisions of this legislation.
The operator of a DAHR facility shall not use or permit to be used in a DAHR procedure a gamete or an embryo provided by a donor where -(a) the donor of that gamete or embryo, as the case may be, and the intending parent or any one of the intending parents, as the case may be, are within the prohibited degrees of relationship as set out in Part 1 of the Schedule, or...
Acting Chairman (Senator Jillian van Turnhout): I believe the Senator is speaking to the wrong amendment. We are on amendment No. 43. I am not trying to stifle debate, but the television screen was showing a different amendment.
Amendment No. 43 refers to where the operator of a DAHR facility commits an offence. I spoke on this issue on Committee Stage. The amendment would establish that it is an offence to facilitate an arrangement involving anonymous gamete donation services from outside the State. As I said on Committee Stage, the amendment evokes certain provisions of the abortion information legislation of 1995 and would provide that it is an offence to make or permit to be made an appointment or any other arrangement for or on behalf of an intending parent or parents with a person or facility that provides anonymous gamete donation services outside the State. Again, the question must be asked as to whether we are serious about preventing the generation of children in circumstances where they will never know who their genetic parents are. If we are, we will ensure the strongest measures are in place to prevent any facilitation of that, which would clearly be intended to get around the provisions of the law of this country.
Deputy Frances Fitzgerald: I dealt with this issue previously and said then that the prohibition is so phrased that if intending parents are referred to a facility that provides anonymous gamete services, the operation would commit an offence, even if the referral was not in order to receive services using anonymous gametes. This is problematic because, clearly, many services do both and provide both anonymous or identifiable gametes. People could be referred for identifiable donations, but because of how this amendment is phrased, availing of that service would be an offence.
An Leas-Chathaoirleach: As fewer than five Members have risen, I declare the amendment lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 30, before line 1, to insert the following:“Prohibition on use of gamete or embryo of related donor
This is the amendment I referred to before and I will not read the verses of the song "I'm My Own Grandpa" again, although I am tempted. It could be career ending.
The amendment is about restricting close relatives from donating gametes to create a child and to avoid the "I'm My Own Grandpa" scenario. There is an obvious and troubling lacuna in the legislation and it is clear that, for the child who results from DAHR using relatives as donors, there is a serious and deliberate blurring and entangling of the legal and biological family links. The child's personal and family identity becomes confused and complicated by these procedures and intergenerational donation is also a possibility under the Bill. It occurs when a mother donates an egg for use by her daughter or a daughter donates an egg for her mother. In the former case, the child's biological mother is treated in law as his or her grandmother and the birth mother is in fact giving birth to her own half-sibling. The scenario could be rendered as my ma is my own grandma. From the child's perspective, his half-sister would be treated in law as his mother in the case of the birth mother giving birth to her own half-sibling. Under the Bill, the child will be told that his or her maternal uncles and aunts will also be half-siblings. The children, who under this Bill the law will treat as first cousins, will be his nephews and nieces. It is so crazy that it must be worked out in advance in order to write it down yet the Bill has nothing to say about the possibility of all of that besides going right ahead and saying that we will not interfere. The Children and Family Relationships Bill puts no restriction on the use of DAHR to avoid either the deliberate procreation of a child whose genetic parents are blood or half-blood relatives and the deliberate procreation of a child in circumstances where the structure of his or her family and extended family, as a matter of law, will contradict that structure as a matter of nature and biology. This is because there is no provision in the Bill to restrict or regulate the use of sperm or eggs provided by a donor who is related, even very closely, to one of the intending parents. The rationale for extending the ban to spouses, civil partners and cohabitants of the intending parents is that these are all persons who may or may not become entitled to be deemed a legal parent of the child conceived and hence the same issues of confusion between the biological and legal family could then arise if, at the time of the procedure, the donor was a relative of such a spouse, civil partner or cohabitant.
Examples of cases covered by the media highlight issues that can arise. The British TV personality Mary Portas recently made public that she and her female partner had a son through IVF using the sperm of Portas's younger brother. Under English law - this Bill will introduce the same problem here - the boy's father as a matter of nature and genetics is his uncle in the eyes of the law and his mother in the eyes of the law is his aunt. If Portas's brother has children of his own, they will be half-siblings of Portas's son. However, in the eyes of the law, they will only be his first cousins. I could not make this up yet this is the new reality when the Government and legislators decide that it is only about whatever the adults want and all of this talk about children's best interests is just such hollow hypocrisy in the light of what it is proposed to tolerate. I hope the Minister accepts there are issues in respect of donors related to the intending parent, and I have not mentioned all of them, which require amendments to the Bill. On Committee Stage, there was reference to prohibition of incest and all that, but it should be quite clear that in any legislation that proposes to recognise parents and the status of who is the parent in a given situation, this should have been thought of and consideration should have been given to those situations. If a same-sex couple wants to bring a child into the world and the sibling of one of them provides the sperm and the other partner provides the egg and is the carrying mother, it is unfair to a child to confront him or her with the reality that his father is his own uncle and whatever else follows from the bizarre concatenation of events imposed on a child in this situation. I ask the Minister to address it. While I have addressed the amendment in tones of irony, I assure the Minister it is not in tones of levity. I refer to what is allowable now in the world where donor assisted human reproduction is provided for in this way, which is happening in the world. In earlier responses to amendments, the Minister was quick to point out what is happening in other jurisdictions and the direction the law has taken under the European Court of Human Rights jurisprudence but the Minister must also be attentive to what is happening in the world now and how permissive and disregarding of children's rights the law in other jurisdictions has become. The Minister should explain to us why she is taking the law in a similar direction here.
Senator David Norris: As I said when the amendment emerged before, my information is that this issue is covered by consanguinity rules in other legislation. In any case, referring to the Portas case, what about it? Who gives a damn if he is his uncle, grandmother, father and daughter? It does not matter because no consanguinity rules were infringed in that case. I have only recently heard of Ms Portas, but she seems to be an admirable and efficient woman. Her brother donated sperm to her partner, so there is no genetic connection at all. There is no medical difficulty about this. I do not see any problem and if it is a question of nomenclature, "God, ugh!" is all I can say. As I am not sure if one can spell that, I will spell it out for the transcribers: "u-g-h" with an exclamation mark.
Senator Fidelma Healy Eames: I raised this issue last week and the Minister responded concerning the whole area of inter-generational and inter-family donation. The Minister said this would be dealt with in detail in the next Bill on artificial human reproduction. As we can see, there can be hundreds of computations. Once it takes off at that level into the multiple range of numbers and computations, unless there are some borders and limits put on this, how can it be determined to be child-centred? Surely it is definitely adult-centred. I am asking this from the point of view of debate. Have we now got to the point where all societal rules are bad and anything goes?
Senator Jim Walsh: The more we go into the detail of this, the more it becomes obvious - even though the Minister, her officials and the Government side are in denial - that we are ill-prepared for what we are doing. It has not been fully thought out. The most serious ethical, legal and other considerations are being raised. That is why other countries have taken a much more cautious approach to this by limiting it in various ways. They do it from what they consider to be in the best interests of the child and they put forward those reasons. From some of the Minister's answers I detect that there is a desire to be leaders in this area in order that we can say we are more liberal than those other countries. One of her answers within the last hour would have illustrated this.
There are, however, issues surrounding children. We know from a child born to an unmarried mother and where an aunt assumed guardianship, that she was reared thinking the aunt was her mother. She subsequently found out that the person she thought was her aunt was her natural mother. We know from the testimonies of such children that has had an effect on them. I am astonished and a little appalled that we are moving in a direction that clearly has not been fully thought through. We are attaching a wagon to an ideology that may subsequently turn out to be very false.
I ask the Minister, even at this late stage, to give pause for thought on the consequences of a lot of what she is doing. The fallout from this will have serious ramifications for children but we are told that we will pick up the pieces in a subsequent Bill and that it will be sorted out subsequently. In the area of children, however, I do not think that is a good enough answer, given the sad history of the State in failing children for many decades. The Minister should give pause for thought and follow a much more cautious approach that has been taken in other countries, rather than seeking to be ahead of the posse and to hell with the children.
Deputy Frances Fitzgerald: In cases of assisted human reproduction, where the use of donor gametes is required, some individuals and couples prefer to use gametes donated by a family member, rather than from an unknown third party donor, that is, a stranger. This is known as intra-familial gamete donation. An example of this would be where a woman donates an egg to her sister to use as part of her AHR treatment - we saw such a case in the courts recently - with her spouse or partner whose sperm would be used to create an embryo.
According to the European Society for Human Reproduction and Embryology, while such intra-familial gamete donation does occur, the evidence suggests it is relatively rare. In discussion with the Institute of Obstetricians and Gynaecologists they stated there were fewer than ten cases of intra-familial gamete donation in Ireland per year. There are about ten such cases per year in Ireland.
There are different types of intra-familial gamete donation. The type of donation can be intra-generational, inter-generational or intra-familial, and there are issues of consanguinity to be considered. It would be nonsensical to suggest that clinics will provide fertility treatment using clearly consanguineous gametes. It would be a complete breach of all relevant medical ethics and duty of care, about which there is no question.
The effect of this amendment would be to prevent, for example, sister-to-sister or cousin-to-cousin donations. This is a complex ethical area and nobody would deny that for a moment. There are issues in terms of this type of donation and there is no question but that it is a complex ethical area. A small amount takes place in Ireland and is subject to clinical assessment counselling. This is not to allow children to be created whose genetic parents are close relatives. As I have said, medical ethics would ensure that no clinician would do this, in the interests of the child to be born. It is, however, a way for an intending parent who cannot provide gametes to have a genetic connection with his or her child. That is why people do it. There are a number of reasons individuals would prefer to use familial donation, in the broadest sense of that word, rather than a stranger's donation. There are a couple of other reasons. One would also have to carefully examine a range of points on this matter. As with kidney donation - as I am not saying it is the same, do not get me wrong - one would have to address certain issues, including, for example, the degree of pressure that might be brought to bear on somebody within a family, undue influence on donors, the importance of counselling for all parties involved and the importance of disclosure. There is, therefore, a whole range of issues to be considered. That is properly part of AHR legislation and the Department of Health is the right place for such issues to be considered.
Department of Justice and Equality legislation is not the place to deal with those issues. That is part of what will be considered in the broader legislation. In the meantime, we have had the recent Supreme Court case reaffirming what had previously been the law - that the mother who gives birth is the mother, as opposed to the person who made the donation. This is a matter for broader AHR legislation, as opposed to being dealt with in this legislation, where we are dealing specifically with issues around the assignment of parentage, examining consents and moving from anonymous to identifiable donations.
Senator Rónán Mullen: I am disappointed by the Minister's response, although I am not surprised that I am disappointed. However, I do not think one can keep kicking the can down the road to AHR legislation when the Minister is opening a Pandora's box with this legislation. This amendment should be considered on its merits. It is not as though these very unpleasant realities of modern life are not already on our threshold.
I heard the Minister's reference to medical ethics. However, with regard to the consanguinity, the Minister said clinics would not be involved in doing this. She said it would be in breach of medical ethics. She did not say it would be in breach of the law. While the Minister is right, undoubtedly, that there are very few cases of this per year in Ireland, the fundamental question remains. It is not just a matter of assisted human reproduction, AHR, legislation that might come down the line because the Minister is legislating around parenting issues and she must legislate on the basis that we might never have such AHR legislation in future and therefore she should legislate to deal with anything that could flow as a consequence of this legislation. It seems that what could flow from this legislation, with the way the Minister is recognising as parents all of these donor assisted human reproduction, DAHR, scenarios, is that we could have this mixing and confusion of the child's natural genetic origins and parenting and the child's legal relationships. It ought to be addressed in this Bill and I will press the amendment.
An Leas-Chathaoirleach: As fewer than five Members have risen, I declare the amendment lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 34, line 35, after “ability” to insert “and intention”.
This amendment which we also discussed on Committee Stage relates to the obligation on a donor assisted human reproduction, DAHR, facility to retain and provide certain information and what happens when the Minister is satisfied that the DAHR facility is not in compliance with his or her obligations under section 28. What I find remarkable about the law as the Minister has proposed it is how timid and facilitating it is, as this legislation is time and time again, in terms of the DAHR facilities. While the entire legislation is premised on the idea that it shall not be possible to procure gametes anonymously, it is clear that the Government does not really mind if it does happen. The Government does not regard it as a terrible intrusion on the rights of the child or an injustice to the child if a child is denied the knowledge of who are his or her genetic parents. I say that because the Minister is so timid in her approach to the clinics. What the law provides is that the Minister, where satisfied that the operator of the facility is not complying, may issue a direction to the operator of the facility requiring them to comply. The Minister has the option of applying to the Circuit Court for such an order requiring the facility to comply in order that he or she can give the direction or go to the Circuit Court for the direction. Either way, if the Minister is satisfied that his or her direction is not being complied with, he or she may apply to the Circuit Court for an order. The Minister can either go to the Circuit Court for an order in the first instance or, his or her direction not having been complied with, apply to the Circuit Court under subsection (3) and it may make an order directing the operator of the clinic to comply with the obligations.
Senator David Norris: This is all getting a little tedious because this question was asked and was answered. It has been asked again now and it will be answered again. It seems to me in any case that the phraseology indicates that compliance is there. I would have thought that was the point. The phrase "satisfying the court of their ability to comply" means the court asking: "Have you done this? Yes. Have you done that? Yes." That is the checklist done and dusted. In other words, the phrase "their ability to comply with his or her obligations" is compliance. It is spelt C-O-M-P-L-I-A-N-C-E. It has more syllables than "one", but it still should be understandable.
Deputy Frances Fitzgerald: I cannot understand why Senator Rónán Mullen would use the phrase "timid" when the reality is that the provisions in the legislation will allow the court, if the failure is ongoing, to order the clinic to cease providing donor-assisted human reproduction services. That will have serious financial and reputational repercussions for the clinics concerned and would be a strong incentive to comply with the requirements set out in section 28.
Section 32(5) sets out that the courts can, by order, restrict the performance of DAHR procedures if the operator is not complying with his or her obligations under section 28, and the restrictions may not be lifted until the operator satisfies the court of his or her ability to comply with the obligations. This amendment would specify that the court must also be satisfied of the operator's intention of complying.
The amendment appears to be predicated on a belief that the court will lift any restrictions that have been imposed on the operator if the operator proves that he or she has the technical capacity to comply with the obligations, regardless of whether he or she is going to comply. That is simply not the case. The legal obligation to comply is clearly set out in section 28, and section 32 provides the Minister and the court with remedies if the operator fails to comply. There is absolutely no question of these remedies being undermined by the operator somehow proving technical capacity to comply with obligations while continuing in practice to flout these obligations. The Senator has also spoken about the next amendment, which would create a specific offence regarding a DAHR operator's failure to comply with its obligations under section 28 to keep and retain certain records. The Senator wants to make sure there are consequences but, as I said, section 28 in subsection (3) already very clearly provides remedies for failure to comply. These provisions enable the Circuit Court to order compliance. If there is an ongoing failure the Minister may make a further application to the court under subsection (5).
Deputy Frances Fitzgerald: Section 32. The Minister may make a further application to the court under subsection (5) and if that failure is then ongoing, as I said, the Minister can order the clinic to cease providing the services. I think it is very clear. The key issue in enforcing compliance is a robust inspection regime under which the officers designated by the Minister for Health will be able to inspect the records being maintained by the clinic to ensure they are recording and retaining the necessary data for the national donor-conceived person register. Section 31 imposes stiff penalties for non-compliance with or obstruction of such inspections, namely, potential imprisonment of two years or a fine of €70,000 on conviction on indictment. I cannot accept either of those amendments.
Senator Rónán Mullen: Just how many donor-assisted human reproduction cases is she contemplating will take place? On her own and the Government's reassurances, DAHR will presumably be a very small part of any clinic's business. The Minister is not proposing to interfere one iota with their general business. The Bill simply provides for the Circuit Court to make an order prohibiting or restricting DAHR and then only until such a time as they satisfy the court of their ability to comply. I remind the Minister that ordinary words have ordinary meanings. She has not used the word "intention", she has only used the word "ability" and she has not told us why.
Let us remember what is at stake. What is at stake is that a clinic, a DAHR facility, may have failed to maintain records that would enable a child in the future to know who they are, or am I wrong? There is a potentially irreversible failure of duty of care to the child under this legislation, end of story. It is irreversible, not solvable, because the donor or knowledge of who the donor is long forgotten. That is either a serious matter or it is not. I really invite Senators to consider on its merits what the Minister has proposed in this section. It is clearly regarded as a trivial matter. By the way, I do have something to add on the subject of amendment No. 52. The Minister mentioned the penalties in section 31. Why are these penalties not included in section 32? Why is it only an offence if they fail to comply----
Senator Rónán Mullen: That is a fair point, my apologies. To summarise, the Minister really must be joking. She has not answered me as to why the words "and intention" are missing and it is not too late to change it. She could go back to the Dáil and I think she should. It should not be just a matter of a clinic being able to satisfy the court of its ability: it should be its ability and its intention to comply in the future.
Senator Rónán Mullen: If right was right, they would be at risk of being restricted from performing AHR full stop, not just DAHR. It should not just be at the later stage once it has been established, not that they have failed to keep records but they have failed to comply with an order around the keeping of records. Even then, the Minister seems to regard it as the most trivial of matters.
Deputy Frances Fitzgerald: I do not agree with Senator Rónán Mullen's analysis of the provisions. If another commercial service in another area were forced by the court to cease a part of its operations, that would not be a timid response. The service operator would view it as a serious problem and would quickly take action to enable it to resume operations. The intention is to bring the DAHR facilities into compliance to vindicate the child's identity rights. If they do not there are consequences and those consequences are spelled out clearly. A clinic in such a circumstance would obviously also be liable for any damage to the child from its failure. What we are doing in this legislation for the first time----
Deputy Frances Fitzgerald: In this legislation we are regulating the area for the first time. A broader assisted human reproduction Bill is necessary but we have dealt with the parentage issues. We are not legislating on the whole AHR area here, as I have said again and again. We are dealing with particular issues in respect of parentage and these provisions are designed to ensure there is compliance and there are consequences if a clinic is not compliant.
An Leas-Chathaoirleach: As fewer than five Senators have risen, I declare the amendment lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 34, to delete lines 37 to 40 and substitute the following:“(6) An operator of a DAHR facility commits an offence if he or she fails in their obligations to comply with section 28 to the extent of causing the Circuit Court to make an order under subsection (3).
This follows on from the last amendment. The core issue is that if a clinic fails to keep records and as a result, certain children will never know who their parents are, that is not even an offence. Clinics have committed an offence if they have impeded or failed to comply with the requirement for an inspection, but a failure, negligence, ill will or whatever it was that caused them not to keep the records which will cause a child in the future not to know who his or her genetic parent or parents are is not an offence. That is wrong. The Minister’s approach is far too timid. It is as though she was in the pocket of the clinics. It is not even the lightest of light touch regulation.
Senator David Norris: That is a regrettable remark. On a point of order, we should ask Senator Rónán Mullen to withdraw the allegation that the Minister is in the pockets of the clinics. It is absurd and disgusting.
Senator Rónán Mullen: Second, I was referring to the Minister in her corporate capacity. I am quite happy to adjust my comment to say it is as though the Government is in the pocket of the clinics. In fact, it is remarkably as though the Government is in the pocket of the clinics.
Senator Rónán Mullen: -----to discover somebody else who was in the business of providing these services and presumably making a profit in providing them had acted in such a way that in the future they would not be in a position to find out who they were. It is an end to the humbug of Senators who want to claim they are in favour of children's rights and at the same time get annoyed with me for making the reasonable observation I have just made. Can we have an end to the humbug? It should be an offence.
If it is an offence to fail to comply with an inspection, it should be an offence to act in such a way that a person is deprived of the opportunity in the future to find out who he or she is. It should not be just at the stage when there is non-compliance with a court order, although that certainly should be an offence. If there is non-compliance with a court order, that is a clear demonstration of recklessness or intention to do wrong. My amendment proposes that it should be an offence if the obligation to comply with section 28 has not been complied with to the extent of causing the court to make an order under section 52(3). It should not be just at the late stage of failing to comply with a subsection 3 order. Let us remember we are not making it an offence if the clinic does not comply with the Minister's direction that it complies with its obligations under section 28.
The amendment proposes that if there has been a Circuit Court order requiring compliance, that is, if there is evidence that will give the Circuit Court the grounds required to make such an order, surely an offence is well grounded at that point? We are not talking about a vulnerable weak person being at the wrong end of the law in terms of what I am proposing in the amendment. It applies to a corporate entity, a money-making entity, an entity that is up and running and is in the business of providing these services. It must be hard to understand why the entity would not be compliant if it is in that business in the first place. That is the basis on which I am proposing that there is a well grounded offence if the Circuit Court gets to the point that it has to make an order requiring them to comply with their record keeping obligations under section 28.
This amendment proposes that they would be liable on summary conviction to a fine not exceeding €3,000 or on conviction on indictment to a fine not exceeding €100,000. As I have said, if the Government is not to be in the pocket of the clinics and if this is not to be the light-touch regulation of the sperm banks, to go with the light-touch regulation of the banks that brought this economy into the mire, we will see change and we will see the Minister accepting this amendment.
I would consider it a very serious offence and a real breach if records were lost. There should be a sanction for the loss of records. After all, Senators Jillian van Turnhout, Averil Power and I spent weeks and months on a Bill trying to ensure that an adopted person's identity was protected and could be revealed to him or her. Is it not as important that a person who is conceived through donor-assisted human reproduction has that information? Let me give the example of Dr. Joanna Rose who was conceived in this way and has done an incredible level of research for her PhD on people who cannot identify his or her father donor. She has said that it bothers her every day of her life. It becomes a serious mental health issue. As we value mental health, why should we not value it in respect of this issue?
Let us call a spade a spade. This is a big money business. It is significant cost to have assisted human reproduction. Do Members know how many thousands it costs? I am sure it costs a great deal more if one has to avail of a donor on top of that. I know a lot about assisted human reproduction between a couple who supply their own egg and sperm. I have many friends and family members who have availed of assisted human reproduction, however, I do not know anything about donor-assisted human reproduction and how much that costs. This is a major money business. When one goes into the waiting room one will see middle class people who can afford it. I think if there is a serious breach, there should be a sanction. I look forward to hearing the Minister's comments.
Senator Gerard P. Craughwell: I take grave exception to the constant reference to money. There are couples who would walk in their bare feet over hot coals to have a child. The constant reference to money turns this entire issue into a dirty backstreet operation. These are professionally qualified people who are giving a service. I will argue the issue of anonymous donation until the cows come home because I feel very strongly about it. I want people to stay with the realities. A service is being provided to allow couples to have a child they will rear and love. Couples are prepared to mortgage their houses to do this.
Deputy Frances Fitzgerald: I believe a closure order is a serious sanction. Is Senator Rónán Mullen suggesting a closure order does not constitute a serious consequence for services such as this? Some of his other assertions are ridiculous.
Deputy Frances Fitzgerald: Some of Senator Rónán Mullen's allegations are ridiculous. On the one hand, people are saying I am not consulting the clinics enough, whereas the Senator tells me I am in the pockets of the clinics. One would not think that when one reads their submissions and what they have to state about the approach I have taken, in moving from anonymous to identifiable donation.
My only interest in this legislation is ensuring parentage provisions are in place and work. That is what I am focusing on. I have said repeatedly that the whole area needs regulation. We have had the commission on assisted reproduction in 2005. We heard one of the Senators, Senator Cáit Keane, speak about what happened 30 years ago when the medical profession first addressed the issue and put regulations on medical ethics in place. We are the first government that has given a commitment to legislation for it and to put in place clear initiatives and legislation that are in the best interest of the child in the areas of consent and donations.
There is clearly broader work to be done in this area. I am dealing with certain aspects of the issue in the Bill. I have said there is clearly a job of work on which the Department of Health has already done a significant body of work with a strong ethical perspective as there are serious ethical issues that must be addressed in the area of assisted human reproduction and donor-assisted human reproduction. That work has to be done.
Failure to comply with an inspection will encompass the way in which a DAHR facility complies with the obligation to keep the records in accordance with what is outlined in the legislation. The offences outlined in legislation will kick in at that point. There will be a major responsibility on the inspection regime to vindicate the child's identity rights. Clearly that is at the core of any inspection regime because it is central to it. As a Government we have made it so central that the child has access to their identity and to the information that is available in the clinic. That information has to be held there and has to be accessible and available. That is the whole point.
Senator Rónán Mullen: There is a concept well known to the law called "strict liability" and the Minister does not need me to explain it. It is when something occurs that is of such gravity that a party is liable, regardless of their intent. That applies in tort law, but it also applies to a certain limited extent in criminal law where the mere commission of an act or the failure to commit an act in a certain case will attract liability.
The Minister referred to section 31 which provides that a person commits an offence if he or she obstructs or interferes with an authorised person or a member of An Garda Síochána in the course of exercising a power conferred on them by this legislation or where a person fails or refuses to comply with a request or requirement, or to answer a question asked by the person. It could hardly be otherwise but that would be an offence. What is remarkable is that there is no comparable offence grounded in the failure to keep records themselves, given the awesome consequences that would have for certain people. That is why I asked whether the Government was in the pocket of the clinics. I think it is, because otherwise some kind of offence would be stated here. If the Senators who think it is vexatious that I should say this, let them tell me why it is acceptable that it is not an offence to act so negligently or so recklessly, or intentionally so wrongly, whatever it be, so as to deprive the child of a chance of discovering who they are. I would like to hear them try to justify that because that is what is at stake.
While I sympathise with Senator Gerard P. Craughwell's comment to a degree when he says we should avoid in any way tainting those whose pain of infertility and whose desire to have a child causes them to spend money, we have all been at pains in the discussion of this legislation to make it clear that we are casting no judgment on anybody. We all understand the desire to have and love and rear a child is real and is rooted in the human experience and it is laudable, but it is not always possible to comply with that desire where there are supervening questions of rights of other parties. That is what these amendments are about. It is about recognising there is a greater right, which is the right of the child to be brought up, where possible, by their own genetic parents and that should not be deliberately impeded.
Where money becomes relevant is in my justifying an amendment that would fix criminal liability, not on an individual who was without any strength of arms to defend themselves but on a corporate entity. There are not many, if any, of these clinics that I am aware of that are operating voluntarily. As they are commercial entities, let us call a spade a spade, otherwise we will do the public a disservice. They are commercial entities and they ought to be targeted by the law where they do not comply with the clear obligations of this legislation. That is all the amendment is about.
An Leas-Chathaoirleach: As fewer than five Members have risen, I declare the amendment lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 35, line 20, to delete "18 years" and substitute "16 years".
The purpose of the amendment is to provide that a young person who has reached 16 years may make arrangements to find out about who he or she is, as opposed to being required to wait until reaching 18 years before acquiring the right to seek such information. Section 34(1) reads: "A donor-conceived child who has attained the age of 18 years, or the parent of a donor-conceived child who has not attained the age of 18 years, may request the Minister to provide him or her with the following information from the Register". I am proposing to reduce the specified age to 16 years, an age at which parents expect children to show considerable cop-on, know-how and capacity to deal with issues and they are already engaging with some of the significant realities of life at school and in social settings. It would be better if young people had the right to seek the necessary information from the register, either on reaching the age of 16 years or before that age where their parents see fit.
Will the Minister respond to the concern raised by the Institute of Obstetricians and Gynaecologists, as well as a number of psychologists, that it may be preferable for people conceived by assisted human reproduction to obtain information about their identity before reaching the age of 18 years? I have raised this issue on a number of occasions, but the Minister has not commented on it. I ask her to address the matter because it concerns me. While I am unsure as to what is the appropriate age at which to obtain information, most of us are concerned that this information could have an impact on young people of a particular age. It may come as a major shock and surprise to them if they are not prepared for it. This scenario must be avoided because it could trigger a mental health issue. We must be careful as to how this matter is enshrined in law.
I know what the Minister is trying to do and agree with the idea that people should have access to information about their identity. However, I wonder if the age of 18 years may be too late and may create a problem for the person receiving this information. As I indicated in an earlier contribution, it could dislocate a young person's relationship with his or her parents.
Deputy Frances Fitzgerald: The Senators raise an important point concerning information about a child's origins and identity. In the first instance, it is preferable if parents discuss the issue with and inform their child. The comments by the Institute of Obstetricians and Gynaecologists were connected to the type of counselling a couple would receive in the first instance and the need to fully discuss these types of decision and point out the various implications in terms of the identity issues that arise. This will require a cultural shift towards greater openness, discussion and disclosure. There has not been any impetus towards such a shift in this country in respect of donor-assisted human reproduction. However, the provisions we have made in this regard will encourage this.
On the issue of age, as I indicated, the best practice would be for parents to have discussions with their children at an earlier age than 18 years. We have learned from the adoption process that the earlier discussions about a child's adoption take place, the better the outcomes. I reiterate the point I made on Committee Stage about the proposal made in the amendment. I have some sympathy with the spirit of the amendment in that we do not take enough account of the position of mature minors in our legislation in general and we often have different ages for different aspects of our legislation. It is an issue which requires consideration at a whole Government level, rather than being addressed piecemeal for a small minority of children in the exclusive context of donor-assisted human reproduction. Therefore, I cannot accept the amendment.
In page 35, line 21, to delete "18 years" and substitute "16 years".
In page 35, lines 35 to 37, to delete all words from and including "(1) A" in line 35 down to and including line 37 and substitute the following:"(1) A donor-conceived child who has attained the age of 18 years may request from the Minister the name, date of birth, contact details and up-to-date full medical history of a relevant donor, as recorded and updated in the Register.".
Senator Jim Walsh: This amendment states, "A donor-conceived child who has attained the age of 18 years may request from the Minister the name, date of birth, contact details and up-to-date full medical history of a relevant donor, as recorded and updated in the Register". It adds to the section in question the provision that the up-to-date full medical history of a relevant donor be kept updated in the register. I listened carefully to a previous amendment which had a similar connotation and the Minister said there was no method in the amendment to give effect to this and there were no sanctions attached to it. That can be overcome quite easily if she were to accept the principle of what we suggest. The donor could sign an undertaking to update the register in the full knowledge of the prescribed sanctions.
I see that there are practical difficulties but they do not mean we should abrogate something which would be in the best interests of the child and which would, in later life, be essential to their well-being. Students, who will be most of the donors, will have temporary accommodation and may be very difficult or impossible to subsequently trace. There is a requirement inherent in this legislation for some updating to be made of the register and the best interests of the child will certainly be served by having details of the health history of the donor being made available to him or her.
Some genetic ailments have serious consequences for siblings, children and other family members, such as ovarian cancer. Along with other cancers it is desirable and maybe essential that children are aware that they are at risk of them. Ovarian cancer is a particularly aggressive and insidious disease which has significant consequences for female members of the family. Generally, when it is detected in a member of the family relatives and children will go for regular scans and if they do not do so, they are at a much higher risk of contracting the disease. These scans are carried out on an annual basis because of the nature of the disease.
There are also implications for women whose ovaries are hyperstimulated using hormones in order to provide the donor eggs which will be part of the process we are discussing. In general it will be poorer women from developing countries who will be donating because they are so financially challenged and this raises very serious and significant ethical and moral issues. Some countries outlaw egg donations completely, though I do not have all those countries in front of me at this moment. France, Germany, Austria and Switzerland allow sperm donations but restrict them to married couples or cohabiting couples in a stable relationship and they are among the countries which outlaw egg donations.
One must ask where the champions of women are and where are the champions of the poor. These are the people that will be affected, perhaps in other jurisdictions, because of the unregulated and unrestricted model we have here. These issues require a lot more consideration and analysis before we go down the road proposed. The legislation is open-ended and I have great difficulty in accepting it.
Deputy Frances Fitzgerald: The donor-conceived child will have the option of contacting the donor and can ask for this information if he or she wishes. As I have said, the broader medical information will be dealt with in the Bill currently with the Department of Health. It will set out the rules under which the Minister for Health may be asked to contact a donor or a donor-conceived child in the unlikely event that a serious genetic issue is identified. I say "unlikely" because donor screening is extensive and very likely to identify serious issues and ensure that unsuitable donors are not recruited in the first instance.
I gave some statistics earlier on the amount of genetic issues which arise in donor-conceived children and some research suggests they are approximately 20% less than in the general population because of screening. Gamete donors are screened extensively and the medical histories of between three and four generations are looked at. Where ovarian cancer is known in the female line it would reflect in the screening. In view of the new regulations we are bringing forward, at 18 years of age the child is in a position to have access to the donor to look for updated information. That is the key point.
Senator Jim Walsh: If the well-being of the child is predicated on contacting the donor we are abdicating our responsibilities as a state in the architecture we are providing around DAHR. While some eggs may come from India, most come from Ukraine. How will the information be updated if it relates to a student living in Kiev or Donetsk? That student living in accommodation can be screened at the age of 18 to 24 years. There may be no indication in the screening of any risk of this particular disease. However, like most of these diseases and this disease, in particular, what triggers the concern and what would give rise to constant monitoring of the health of a child born from the donor egg would be a clear indication that this had occurred in the child's mother at a certain stage. That may well be, and it is probably very likely to be, after the age at which the egg donation was made. It could be ten years or 15 years. By the time the person reaches 18 or 20 years, that is when that information might just become available and would be crucial. I do not see why we cannot impose an onus. Implicit in the Minister's reply is that when the child reaches the age of 18 years, he or she will be able to contact the donor. The donor will obviously have moved address many times. How will that contact be available to the child? If it is available as readily as the Minister says, why would there not be an onus on the donor to keep the register updated? That would be the authority in Ukraine - if the donor is from Ukraine - where the donation would have been made in the first instance. This information would then be available to the facility here. The Minister is taking an absolutely minimalist approach to the information, which in my opinion puts the child or the donor at risk. That is irresponsible, to be quite honest.
This is a simple, straightforward amendment which, logically, I do not think the Minister can argue against. It provides that there would be a requirement for the person giving the egg or the sperm to sign an agreement that if he or she contracts a life-threatening disease, he or she will provide that information. The minimalist approach being taken by the Minister shows a lot of flaws. It should be addressed in this legislation. The Minister may reply by saying that it will be addressed in a more substantive Bill which may come at some stage in the future, but it may not be addressed there and we cannot be sure. We are legislating for now and deciding on what is before us. The lacuna in this area is of a very serious nature.
In page 40, to delete lines 8 and 9 and substitute the following:“(e) the father is a guardian of the child by virtue of section 6D, or
These amendments are designed to improve the position of the unmarried father. I discussed my concerns on Second and Committee Stages. The amendments would provide a rebuttable presumption of guardianship for all unmarried fathers. As I said previously in the debate, we should be trying to do everything possible to encourage all fathers to be as involved as possible in their children's lives, provided that this is in the best interests of the child concerned. This country has a terrible history of excluding unmarried fathers. They have no constitutional rights and they have had little or no legal rights to date. I appreciate that the Bill improves on that situation somewhat by providing for guardianship rights for unmarried fathers where they have been cohabiting with the child's mother for 12 months, including for three months after the birth of the child. I appreciate that this is a significant step, but I do not think it is far enough. I am concerned, in particular, that the focus in those provisions is on the father's relationship with the child's mother and not on the relationship between father and child, which, in my view, should be the key consideration. If a father is prepared to be involved in his child's life, to accept both the rights and the responsibilities that come with fatherhood, then we should facilitate and encourage that, regardless of whether his relationship with the child's mother is good or not. All parents should work together in the interests of their children. However, I accept that concerns have been raised with me by some groups around giving guardianship rights to all fathers because, in a minority of cases, there may be an issue if the child was conceived through rape or if there are concerns about the safety of the child or the mother. In these situations it would not be right for the father to have automatic guardianship. However, these comprise a very small minority of cases and there are ways of dealing with them. Rather than having a blanket exclusion of all unmarried fathers - unless they are cohabiting with the mothers and thereby fit the criterion in this Bill - there are more appropriate ways of providing rebuttable presumption of guardianship rights to all unmarried fathers, with provisions to deal with circumstances of rape and safety issues.
Senator Jillian van Turnhout: I commend and support Senator Averil Power's amendments. It is an interesting set of amendments which would provide a framework for the rebuttal of a presumption of guardianship rights. In 1982 and again in 2010 the Law Reform Commission recommended two guiding principles for automatic guardianship - the best interests of the child and that all parents should be treated equally, regardless of gender or marital status - linked with compulsory joint registration of the birth of the child. With these amendments Senator Averil Power strives to strike a balance, while also providing safeguards. They would also send a clear signal that all fathers were equally responsible for their children. I commend her for submitting them.
Senator Jim Walsh: I am happy to support this amendment which has been well thought out. The arguments have been well made by Senators Averil Power and Jillian van Turnhout. I would probably have gone a step further in regard to section (4B)(b) which states in reference to the father: "the father has been registered in a register of births as father of the child". I would have included the words "or has established fatherhood through DNA testing". The reason for this is that sometimes the couple have parted company, perhaps months in advance of the birth, and for some reason the mother does not wish to have the father's name on the birth certificate. Therefore, there should be another means of establishing fatherhood.
The point about fathers is well made. There should be equality between fathers and mothers, but there is not. Recently I visited a household in which a youngster was visiting his grandparents and father and I could see the relationship between them was good. The father then took the child back to his mother. It is good that these parents can share parenting. Many parents see the sense in putting the differences between them aside so as to act in the best interests of the child. The State should facilitate and encourage this. I see no reason the Minister should object to the amendment, but I presume, like all other amendments, it will not be accepted, which tells its own story.
Getting back to the issue of fatherhood, will the Minister comment on the situation where a mother leaves her husband or cohabiting male partner with the children of that relationship and enters into another relationship, be it with another woman or man? As I read the Bill, the biological father who may be attached to the children and they to him will become a secondary person in the eyes of the legislation if the others apply to parent the children. This may well happen. I saw a programme on television recently on which a lady raised the spectre of a same-sex couple in Boston, where, when the couple had broken up and the natural mother of the child had failed to gain custody of the child, custody was instead given to the non-biological parent.
We are opening a Pandora's box without taking any of the normal precautionary measures other countries have taken. It is an experiment in social re-engineering which could and will have serious consequences for some children. I hope that through these amendments the rights of fathers would be respected and that the Minister is prepared to accept them. However, I am not holding my breath.
Deputy Frances Fitzgerald: Amendments Nos. 68 and 69 would set out a rebuttable presumption of guardianship in favour of a non-marital father. I thank Senator Averil Power for proposing these interesting and thought-provoking provisions. I fully understand her rationale for doing so and know that she is keen to provide an early legislative response to address the issues of non-marital fathers. Despite this, I am not in a position to accept the amendments because we need to consider the position further and carry out wider consultation with key organisations and professionals with expertise on this issue.
Senator Averil Power: I thank the Minister for her response. The key point is that it would be a rebuttable presumption. This means that the court, if satisfied that it was not in the best interests of the child, could displace the presumption. I do not accept that my amendment would make things difficult for the court because it would be able to weigh up the varying evidence and decide what was in the child's best interests. We deliberately did not provide for automatic rights, but I know that an alternative amendment brought forward elsewhere would provide for automatic rights for all unmarried fathers. As I said, I accept that there are concerns about the minority of cases in which guardianship would not be in the child's best interests. I also note the Minister's comments in regard to 97% of applications being approved, which makes the case for having a system like this in that we should not force 97% of fathers to go to court to establish guardianship rights in respect of their children in order to deal with the 3% of cases where such an application will not be approved. It is unfair and wrong for the fathers and their children. We need to keep family law disputes out of the courts in so far as possible and to try to maintain relationships as amicably as possible. It is distressing for all involved when a situation ends up in court and it is being fought over in a contentious way.
That is the spirit behind the amendments. I welcome the Minister's openness about looking at this issue and the fact she gave such a detailed reply. I also welcome her commitment to consult stakeholders on it and her offer that I be involved in it. I would very much like to work on this issue with her. It is an area of interest to me.
I will not press the amendment, but I am a little concerned about the delay in this area already because, as has been pointed out, there have been two Law Reform Commission reports. However, I can tell from the Minister's reply that she has a genuine interest in it. On that basis, I will not press the amendment. I would like to work with the Minister on moving forward in this area. It is long past time that we did right by unmarried fathers and their children.
Senator Jim Walsh: On a point of order, once amendments have been spoken to, are they not the property of the House? They are good amendments and I would like to press amendment No. 69. As this happened previously, there is a precedent. I object to the withdrawal of amendment No. 69.
In page 43, to delete lines 14 to 18 and substitute the following:“6B. (1) A man who is, under section 5(1)(b) of the Act of 2015, the parent of the child, shall be a guardian of the child.”.
I think I know the answer to the amendment, but I will move it. We are pushing further here than Senator Averil Power. I agree with the sentiment of what she said in that we were looking for an almost automatic presumption of the father being the guardian. We believe all fathers should be granted automatic guardianship at the moment of birth. As I said previously, in some cases, cohabitation is not possible as sometimes mothers are still living with their parents and it is not always appropriate or possible for the fathers to live there also. That is often the case with teenage or unplanned pregnancies, but it does not always mean the father is, in any way, shirking responsibilities or not stepping up to the plate. The circumstances are not in his favour. I mention the case of fathers who are working away from home, perhaps abroad, who simply are not in a financial position to support the child. Our amendments seek to go further than Senator Averil Power's, but I have a good sense of the answer we will get.
Deputy Frances Fitzgerald: I think the Senator understands the position. I had taken a number of initiatives to make it easier for non-marital fathers to become guardians and the changes and the information campaign to which we are committed in regard to the statutory declaration will make quite a difference. The Senator has just heard my reply to Senator Averil Power whom I thank for the approach she has taken in regard to this issue because we can do the kind of work that is necessary to establish the views of the various groups and how we can best draft this. When Deputies spoke about this in the Dáil – I think the point was made in the Seanad also - the majority said we should go for automatic guardianship but equally most said there were exceptions. It is in the drafting of these exceptions and trying to figure out the detail that a job of work remains to be done, which I will do.
In page 43, to delete line 16.
In page 43, to delete line 23.
In page 43, to delete lines 25 to 31.
In page 44, before line 1, to insert the following:“Central Register for Statutory Declarations for Joint Guardianship
This is about what we discussed on Committee Stage. We are calling on the Minister to establish and maintain a register to be known as the central register for statutory declarations for joint guardianship, the purpose of which is to provide protection for the statutory declaration documents which grant guardianship rights to unmarried fathers in respect of their children.
Senator Jillian van Turnhout: I second the amendment. I tabled an amendment with the same intent. I feel strongly about this issue and welcome the amendments the Minister introduced on Report Stage, including the new section 97. It was an issue several of us, including Senator Averil Power and I, brought up when we met the Minister in the consultation about the Bill; therefore, I recognise that she was going some way to try to address our concerns.
This whole area of law is blighted by lack of awareness and understanding among unmarried mothers and fathers about the legal ramifications, rights and responsibilities flowing from the birth of their child. Section 97 will act as an important signpost and mechanism to raise awareness. However, in practice, I fear the new provisions lack the teeth in the absence of a national central register for guardianship agreements. The statutory declaration may go missing. All of us at some time have lost a vital document, whether a passport or a driving licence, and that is without any fractious period of time in our lives such as the end of a relationship.
It is welcome that the Bill provides for a national donor-conceived persons register to safeguard the child's right to identity. I would like to see a national register of joint guardianship statutory agreements to ensure the rights of the child to have a meaningful relationship with both parents and to uphold the father's right to family and private life under Article 8 of the European Court of Human Rights, which is recognised in a number of European Court of Human Rights cases as existing between a man and his minor child. Even where there is no evidence that the man ever cohabited with the child's mother, parental rights should be enjoyed. The law should presume that the majority of unmarried parents are reasonable, responsible and law-abiding citizens and where they are not, this should be addressed through relevant legislation.
In preparing this amendment I asked Treoir if, when working with unmarried fathers, the loss or the withholding of a statutory declaration was an issue. I stress this because there are many cases where the partner will have the statutory declaration. I will forward these cases to the Minister because they are real cases that have happened in recent months, where a spouse has gone to another country with the statutory declaration which means the father cannot go to court or seek redress because he does not have this one piece of paper. There are also cases where the mother is on holidays, the relationship is good, the child has an accident and needs dental surgery and the dental hospital asks for a copy of the statutory declaration but the father does not have it. The father then cannot prove he is the father of the child. Even when there is a good relationship events can happen; therefore, it would be very important to have a central register. It is a very significant document. I understood the Minister’s point on Committee Stage about putting in a compulsion but it is more important to make it compulsory to hold these documents centrally. We have all lost vital documents and that is without fractious break-ups in our lives. From a children’s rights perspective this is very important. We can have a database for every square inch of land in the country and I would like to ensure we have one for statutory declarations to ensure that if necessary a father can have his rights upheld and that it does not depend on one piece of paper. I misplace pieces of paper, as I am sure we all do at times.
Senator Ivana Bacik: As Senator Jillian van Turnhout says, we all agree in principle with the need to ensure registration of statutory declarations, but I commend the Minister for her very clearly stated intention on Second and Committee Stages to seek to develop the pilot project to establish the voluntary repository and then decide whether to proceed to establish a national repository. This is a big undertaking. While we all agree on it in principle, the question is how to proceed with it. The Minister is right in saying there is an appropriate way to do this. Before we bring in legislation, we should consider how best to do this to ensure it is not unduly onerous, and raise awareness. This debate is important because it has raised awareness among many people of the statutory declaration and the need to sign one in order for a father to have guardianship in a situation where the couple is not married. I am glad that we have the opportunity to debate this issue and I commend the Minister for proceeding in the way she has outlined.
Senator Averil Power: I support the amendments. I pushed a similar amendment on Committee Stage. It is a very serious area and for the effort involved in setting up a register the benefits would be immense, particularly in the situations Senator Jillian van Turnhout outlined. Perhaps the Minister might change her mind and go a bit further than a pilot scheme on the basis of the discussion we had last week. This should be a priority.
Deputy Frances Fitzgerald: It is striking how many Members have raised this issue in the debate in the Dáil and here, although it has never been done before and has not been the subject of any public debate. I have begun to examine it and staff in the Department have been considering the range of issues that would be involved. It is a big job to establish this. It will take work because there are issues involving security, data protection, data management and financial implications. We have to invent how this will be done. I decided because of the interest in it, and following the debate in the Dáil, to establish a pilot project as soon as possible to examine the issue and take it forward. We will invite parents who have made statutory declarations to deposit copies of the declaration with an administratively operated repository as an additional security mechanism. I will report on the outcome and we can examine how best to take it forward.
I remind Senators that section 6F of the Guardianship of Infants Act 1964 as inserted by section 49 of the Bill in cases of dispute between the parents as to the duration of cohabitation provides a remedy allowing either of them to apply to a court for a declaration that the father is or is not a guardian. I will take the spirit of what is intended behind Senator Jillian van Turnhout and Trevor Ó Clochartaigh’s amendments and the one Senator Averil Power tabled on Committee Stage and using the core principle behind them will begin to work on the issue.
In page 81, between lines 15 and 16, to insert the following:“Amendment of section 14 of Principal Act106. Section 14 of the Principal Act is amended by the insertion of the following paragraph
We spoke at length on Friday about whether in the course of an assessment for an adoption placement the birth mother’s wish to nominate her family type or preference for her child would be acknowledged and noted in the child’s placement. I was largely happy with what the Minister said then, but it struck me over the weekend that I had not asked her whether, when this Bill passes into law and after the referendum, when the marriage equality legislation is passed, a birth mother will be counselled and encouraged to nominate her preference for the family type in the same way and whether her wishes will be met as the advocate for the child.
Deputy Frances Fitzgerald: I have had a further discussion with the Adoption Authority of Ireland on the points the Senator made since we discussed this here last week. It is absolutely the practice that the mother’s wishes in respect of the adoptive family are taken fully into account. We do not put into the statute that the mother decides because under the Hague Convention it is the central authority which makes the statutory final decision but the absolute practice is to match the family to the birth mother’s preference and that will continue to be the situation.
In page 84, between lines 20 and 21, to insert the following:“114. The Principal Act is amended by the insertion of the following section after section 32:“Requirement of informed consent in respect of certain applicants
In page 84, line 24, to delete “subparagraphs” and substitute “subparagraph”.
The principles are all interrelated. The current provision in adoption legislation is such as to give preference to the marital family or widow, widower or single person who is a relation of the child. There is a particular reason this is the current legal position. The presence of widows and widowers in the first category is based on a certain understanding of marriage that underlay the legislation in that the widow or widower came within the institution of marriage for the purposes of understanding the constitutional family and adoption law. It is for this reason that one finds, in the first category of prospective adopters or people who may without qualification apply to adopt under existing legislation, married couples, widows, widowers or single persons who are related to the child who is the proposed subject of the adoption order. However, the law provides that in particular circumstances a single person may adopt. It is worth remembering that this provision was included when Dr. O'Hanlon was the relevant Minister and that part of the background to extending the right to apply to adopt was the phenomenon of the Romanian orphanages and single people who, in some cases, on having travelled abroad to do some very laudable and creditable work in such orphanages wanted to apply to adopt. The law was enlarged to meet that aspiration by providing that such persons could apply to adopt as single persons. The existing circumstances best represent the solicitude to vindicate the child's best interests, which is to say that, all things being equal, it is better that an application to adopt be made by a married couple, although there may be exceptions where a single person related to the child, or a widow or widower, can apply. There may be other particular circumstances where the law contemplates single persons not related to the child might be eligible to adopt.
What we have here is a certain trumping by ideology over what many people have always understood to be common sense. There is a great compassion, realism and pragmatism in Irish people and they know that parents do their best, often heroically, in all sorts of situations. Most people in Ireland have always wanted to support that and our instincts about that have informed the collective horror at the failures of the past in regard to the institutional care of children in particular, but that same general sense that children ought to come first in our society is at work in some of the criticisms I have heard and that have been made about the Bill.
The amendments seek to restore not an absolutist position but a social preference and specifically in the making of an adoption order, that in order for the person to consent to the making of an adoption order the birth mother, in particular, would know when consenting that it is not proposed to place the child either with a married couple or with an individual who was related to the child or a widow or widower, in other words, the older automatic category. It is not important or central to the amendment I have proposed whether they would know that it was proposed to place a child either with civil partners or with a cohabiting couple, that is not the point. The point is whether the person placing the adoption has the right to secure, by making it conditional on their consent, that the child would be placed in time-honoured fashion with a father and a mother.
The case has been made by some that one can already do this in certain areas of the law. For example, the law provides in certain cases that parents placing a child for adoption may object if the religion of the proposed adoptive parents is not the same as their own and that probably recognises the social sensitivity around different people's faith commitments and so forth. Surely, even more important would be the basic aspiration that a parent might have that their child would be placed with a father and a mother. I think that decision should be left to the parents. That is a relevant issue and one that goes to their consent. It should not be regarded as something that somehow breaches some kind of equality principle if they were left to make that consent. There is a higher value which has to do with the right of a child to be brought up by a father and a mother, unless the best interests of that child can be shown to be otherwise.
This echoes everything I said on Second and Committee Stages, that is, the right a child has to its mother and father. I have quoted various people on that issue. What prompted me to table amendment No. 94 is that it is well recognised, even though the Minister is inclined to deny it, that a child does have a right - we talk about rights of identity but it is more than identity - to either their own biological mother and father or, where that is not possible as in the case of adoption, that we replicate that with what they would have aspired to, other than for some reason it was not possible. I fully accept that sometimes it is difficult for, say, a single mother to place a child for adoption and that there may be reasons behind that which we must fully respect. Very few mothers would do that lightly. As we have seen, many mothers subsequently have come back many decades later to try to make contact with their natural child and the State has been very facilitating and very critical of the fact that in the past provision was not made for those ties to be maintained and preserved. However, the State does not appear to have reservations about going in the opposite direction in respect of some of what is being proposed in the Bill. I have already put on record a well-known English singer who is in a gay relationship who said it will break his son's heart to realise he has not got a mother. We know from many who have gone through that trauma the efforts they will make subsequently to reach out to their mothers and we know how heart-rending are those reunions. In general, it transpires that the natural bond, after many decades, is somehow rebuilt. I am sure many regret and, in other instances, this House would regret the fact that the bonds were ever severed and would be highly critical of those who might have played some part in facilitating that. Often times it was families and it may have been institutions. It was a case of the State to some extent facilitating and, perhaps, letting down these children.
I mentioned the case of a lady raised by a lesbian couple whom she is very effusive in complimenting on their commitment to her and the life she had with them but subsequently came to recognise the void that was created in her life. She added, "My father's absence created a huge hole in me and I ached every day for a dad." We are creating legislation which will have many such children echoing those sentiments in the years to come. Why would we do this, I ask, if the Bill is really about the best interest of the child?
Deputy Frances Fitzgerald: My amendments are intended to ensure couples may be eligible to adopt jointly. It is then the function of Tusla to carry out a suitability assessment. Significant information is given to the birth mother and, rightly, huge weight is given to her views. The birth mother, quite rightly, already has a significant input into the selection of a potential adopter. I am informed by the Adoption Authority of Ireland that the birth mother, or any person whose consent to a child's adoption is required, would be told about the gender and civil status of any proposed adopters before deciding whether or not to consent to the proposed adoption, and there would be a discussion about this. Further, there is a period during which the birth mother can withdraw consent.
We have constructed the approach to adoption in the Bill in a very careful way so that couples are equally eligible. This does not mean that couples are equally suitable. That is a question for the assessment. The eligibility is equal but a suitability assessment has to be done. This will involve everything which already happens in an adoption assessment. There are no proposals in this legislation to change how the adoption assessment is carried out. The Bill does not alter our careful system of assessments for suitability, which is in line with the Hague Convention. It simply expands the pool of couples eligible to adopt. Many of the adoptions will be in-family adoptions. For the small number of stranger adoptions, if one likes, I am continuing the current policy, which is that adoption is a child welfare mechanism. It is a child welfare measure. There is no studied neutrality on the point. Adoption is a child welfare mechanism and will continue to be a child welfare mechanism. The Bill does nothing to change this position. There is no neutrality. The position is very clear: adoption is a child welfare mechanism.
Deputy Frances Fitzgerald: As the Senator knows, a married couple and single people can adopt. In the Bill we are allowing cohabiting couples to adopt. This is different, but the same principles around assessment continue to be in place. There is no change to this.
Many couples who wish to adopt find the suitability tests carried out by Tusla very intrusive, and with justification. Their strengths and weaknesses are assessed and everything involved in an adoption assessment is done because we want to answer the question of what is in the best interests of the child. This is the question that is put. It does not concern the couple's status but their parenting capacity. This is at the centre of the approach in the Bill when examining all of these issues, whether it is guardianship, access, custody or adoption. The test is what is in the best interests of the child. We are broadening the pool of those who are eligible to adopt, but the mechanisms by which the assessment is done and suitability considered remain the same.
Senator Rónán Mullen: I thank the Minister for her response, but I do not understand the logic of her position. On the one hand, she deplores a hierarchy of families, while, on the other, she says the status quo does not involve such a hierarchy. She attempts to reconcile the two positions by saying that she is widening the pool of eligibility to include cohabiting couples, but she is doing much more than that. She is widening the pool of eligibility to include civil partners as well. Single people may adopt "in the particular circumstances". It is particular circumstances that apply where a single person may adopt. Why does the Minister not maintain that "in the particular circumstances" a cohabiting couple may apply or that "in the particular circumstances" two civil partners may apply?
In page 84, to delete lines 25 and 26 and substitute the following:“ “(ia) the applicants are civil partners of each other who are living together and satisfy the Authority that, in the particular circumstances, the adoption is desirable and in the best interests of the child,”.
An Leas-Chathaoirleach: As fewer than five Members have risen, I declare the question lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 84, to delete line 27.
In page 84, line 31, to delete “subsections” and substitute “subsection”.
In page 85, lines 15 to 23, to delete all words from and including “(3B) Where” in line 15 down to and including “Authority.” in line 23.
In page 85, between lines 36 and 37, to insert the following:“(f) in subsection (7), by the substitution of “applicants referred to in subsection (1) (a)(ia) or an applicant referred to in subsection (1)(a)(iii)” for “an applicant referred to in subsection (1)(a)(iii)”.”.
In page 85, between lines 36 and 37, to insert the following:“(f) by inserting after subsection (7) the following subsection:“(8) In making an order the Authority must act in the best interest of the child (having a mother and a father) and will give preference, in the first instance to married male-female couples, subject to paragraphs (a), (b), (c) and (d) of section 34.”.”.
An Leas-Chathaoirleach: As fewer than five Senators have risen, the question is declared lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
In page 87, lines 10 and 11, to delete all words from and including “(iii) where” in line 10 down to and including “adopters,” in line 11.
In page 87, line 24, after “wedlock;” to insert “or”.
In page 87, line 26, to delete “or”.
In page 87, lines 27 and 28, to delete all words from and including “(iii) where” in line 27 down to and including “and” in line 28.
In page 87, line 35, after “wedlock;” to insert “or”.
In page 88, line 2, to delete “or”.
In page 88, lines 3 and 4, to delete all words from and including “(III) where” in line 3 down to and including “and” in line 4.
In page 88, lines 12 to 14, to delete all words from and including “(ib) where” in line 12 down to and including “and” in line 14.
In page 88, lines 24 to 30, to delete all words from and including “(9) In” in line 24 down to and including “concerned.” in line 30.
In page 88, line 36, after “wedlock,” to insert “or”.
In page 88, line 39, to delete “or”.
In page 89, lines 1 and 2, to delete all words from and including “(c) where” in line 1 down to and including “couple.” in line 2.
In page 89, to delete line 31 and substitute the following:“(ii) in subparagraph (iii), by the substitution of “child, or” for “child.”, and”.
In page 89, line 32, to delete “subparagraphs” and substitute “subparagraph”.
In page 89, line 33, to delete “child, or” and substitute “child.”.”.
In page 90, lines 1 and 2, to delete all words from and including “(v) the” in line 1 down to and including “couple.” in line 2.
In page 90, line 6, to delete “paragraphs” and substitute “paragraph”.
In page 90, lines 8 and 9, to delete all words from and including “(cb) the” in line 8 down to and including “or” in line 9.
In page 113, after line 18, to insert the following:
Question put: "That the Bill do now pass."
The Seanad divided: Tá, 20; Níl, 2.
Tellers: Tá, Senators Ivana Bacik and Michael Mullins; Níl, Senators Rónán Mullen and Jim Walsh.
Question declared carried.
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