Status of Children Bill, 1986 (Seanad): Committee Stage.

Section 1 agreed to.
Amendment No. 1 not moved.

I understand that Deputy McCartan was to deal with this amendment but he is sick at present. The intent of the amendment will be dealt with on Report Stage and for that reason I am not moving the amendment.

Section 2 agreed to.

Acting Chairman

Amendments Nos. 2 and 3 may be taken together.

I move amendment No. 2.

In pare 6, subsection (1), line 1, to delete "In" and substitute "Subject to the provisions of section 4, in".

Section 3 seeks to provide the basis upon which relationships should be deduced between a child and its parents. It makes particular provisions in that regard. Basically the section provides the relationships between every person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother are or have been married to each other, and all other relationships shall be determined accordingly. The section then goes on to deal with the question of adoption which we can deal with at a later stage when dealing with the section itself.

The problem with the section is that there is an assumption built into this provision which in most instances — I suppose, in the context of 99 per cent or more — of children born is correct, but in a particular area does not apply at all. It is assumed in using the terms "father" and "mother", that on all occasions when a child is born to a couple, be they married or unmarried, the child has been born as a result of the couple having sexual intercourse in the usual way and the conception taking place. In the vast majority of instances those are the circumstances in which children are born. The section recognises in certain other circumstances a couple may have a child that they have not given birth to in that way themselves. The section makes express provision for adopted children, so as to ensure that an adopted person is to be deemed from the date of adoption to be the child of the adopter or the adopters and not the child of any other person or persons.

In recent years, and even since the publication of the Law Reform Commission Report on Illegitimacy, there have been dramatic advances in medical science, some of which are now being applied in this country which enable a couple to have a child in circumstances which do not coincide with the usual circumstances in which a child is conceived. For many years it has been possible for a couple to have a child by way of artificial insemination. There are now an increasing number of childless couples resorting to artificial insemination as a means of having children. The technique of artificial insemination is being used in St. James's Hospital in Dublin and in other medical institutions in the country. It can be used in two contexts. First it can be used where for some reason it is not possible for the wife to conceive, although both the husband and the wife appear to have no physiological problems or there might be a minor physiological difficulty and artificial insemination takes place as a result of the use of the husband's semen, and a wife conceives. In those circumstances it seems to me that under this Bill, there is no problem under the concepts of father and mother. But a child can be conceived by a couple by the use of the technique of AID, which is artificial insemination by donor. There is also in Ireland a sperm bank which is being used by couples for artificial insemination in circumstances where that technique cannot result in a child being conceived if the semen used derives from the father.

I am proposing an amendment to section 3 of the Bill. Amendment No. 2 is simply a consequential amendment which would become necessary if the new section 4 which I propose is accepted. The substantive amendment is amendment No. 3 which proposed to insert a new section 4 as follows:

In deducing any relationship for the purposes of this Act or of any Act of the Oireachtas passed after the commencement of this section, where a child is born as a result of the artificial insemination of a woman who——

(a) was at the time of insemination a party to a marriage (being a marriage which had not at that time been annulled); and

(b) was artificially inseminated with the semen of some person other than the other party to that marriage,

then, unless it is proved to the satisfaction of any court by which the matter has to be determined that the other party to that marriage did not consent to the insemination, the child shall be treated in law as the child of the parties to that marriage and shall not be treated as the child of any person other than the parties to that marriage and the husband of the marriage shall be regarded as the father of such child.

An extraordinary legal position exists at present whereby if a couple who are married to each other and who cannot have children use artificial insemination by donor, the technique that is known as AID and if with the consent of the husband this technique is used and to the great joy of both husband and wife successfully results in a child being born to them, under the law at present that child is illegitimate because it has not been fathered by the husband. This is something which is not generally known or understood, but which can give rise to all sorts of legal difficulties for this child in the future and which can in law differentiate that child from other children. For example, if there are already two children born to the couple and if for some reason they cannot have another child, and wish to do so and they resort to this technique and successfully have a child, their first two children under the current law are legitimate, while the third child under the current law is illegitimate and is in a legally inferior position to the other two children.

Generally speaking, this Bill is designed to place all children in a position of legal equality. The implications of what I am saying are that unless we deal with this issue, we will, in trying to remove the legal disabilities that apply to children who are currently termed "illegitimate" remove those legal disabilities with regard to one set of children, but we will copperfasten them with regard to the child born as a result of AID. This is a serious issue for another reason. Up to four or five years ago couples who could not have children of their own experienced very little difficulty in adopting. The number of children available for adoption by a childless married couple has been drastically reduced, despite the substantial increase in the number of children born outside marriage. Whereas at present 10 per cent of the births are of children born outside marriage, the majority of unmarried mothers retain custody of their children. The effect of that has been that up to about five years ago there were in excess of 1,000 adoption orders made in respect of childless couples per annum and at present there are only in the region of 500 to 600 such adoptions made. The remaining adoptions made in recent years have been where unmarried mothers have adopted their own child, often jointly with a husband whom they have married. Many adoption societies have closed their doors to new applicants because they have far more applicants seeking to adopt than they have children available. The result of this and the effect of the advances in medical science, which have made the technique of artificial insemination and other related techniques far more effective and efficient than they were in the past means that there will be an increased number of childless Irish couples resorting to this technique in order to have children. Unless the amendment I am proposing is made to the Bill a child born to a couple as a result of AID, where in real terms the mother has contributed towards the conception and birth of that child, will be in a legally inferior position to an adopted child. That seems illogical. In Irish terms this would be regarded as a sensitive area and for too long this House has sought to ignore such matters rather than deal with them. It has taken too long to bring in legislation to place children in a position of legal equality. In doing so we should not bring in legislation that has obvious and too stark defects and that has not kept pace with the realities of Irish society and modern scientific development. Unless we deal with this issue at this stage in this Bill it may be 50 years before another similar matter comes before this House.

In a nutshell, this measure seeks to ensure that where a couple who are married to each other resort to the technique of AI no doubt can arise as to either the status or legal position of that child born as a result of the use of this technique within his family and that no doubt can arise as to the position of the father. It is to ensure that we do not create a new class of children against whom we preserve a discrimination. Unless this amendment is made in this way it would seem that many of the good things in the Bill which seek to provide protections to children will not be extended to a child born in these circumstances and I can foresee many court cases where people seek to determine what is the meaning of a father in the overall context of this Bill and of children born in these circumstances.

I ask that this amendment be accepted. I hope it will have the support of the House. It is an amendment along the lines of similar legislation introduced in a number of other jurisdictions to deal with this issue. It is not a unique, redrafted measure confronting this issue for the first time. Similar measures have been introduced in parliaments and legislatures in many other countries. We tend to be very slow in legislation making provision for modern scientific developments. AI has been a possibility for many years but only in recent years did it become generally available to people in this country and begin to be used by couples who found themselves childless and who, because of social developments, regard adoption now as a less possible alternative. Many of these couples would wish to have their own child in this way instead of having to resort to adoption.

I do not think that this amendment is a matter of great controversy. It is trying to provide in a sensible way for a delicate issue to ensure that when the legislation is enacted all children will be treated equally regardless of the circumstances of either their conception or their birth.

These amendments are opposed. The Law Reform Commission in their 1982 report on illegitimacy dealt with this subject briefly and they considered that it raised important moral and social issues that were outside their terms of reference. The previous Government felt that this question should be considered as a whole and separately from the question of removing the discriminations in the existing law on illegitimacy. I am in full agreement with that approach. This subject is extremely complicated and raises many difficult issues with ethical, medical, moral, sociological and legal implications and clearly calls for separate and comprehensive examination apart altogether from the Bill. I am aware that the recently enacted English family law reform legislation dealing with the status of children contains a provision on the status of paternity of a child of a married woman conceived by way of AID with the consent of the mother's husband. There was considerable controversy in the English Parliament about that provision as it dealt with only one aspect of a very complicated problem before the general issues involved had been fully gone into.

I am disappointed with the Minister's response. The Labour Party support the amendments. I do not know how frequently the sort of issue raised here arises. I imagine that it does not arise very frequently, but it is a very human one, and it behoves this House to have a sympathetic approach to it.

The urge to be a family and to have a child is a great natural instinct. I do not know why we have to stand back from these issues. Surely we can face up to a very human problem that affects families. Where there is consent between the husband and wife to this procedure, a child is born into and grows up as part of a family unit. Why can we not be progressive about such an issue? Why can we not look forward and say that this is primarily the concern of this family? Who else does it involve? It involves this unit of three people, the husband, the wife and a child born as a result of this arrangement. It is primarily their concern, a private matter. Are we in this House to set high flown moral standards that really do not concern the community at large?

The family is the ideal sought under our Constitution. We pay great respect to the institution of the family. It is referred to in the Constitution. This is a family unit, and why not recognise it as such? That is the intent of the exercise. A voluntary arrangement is entered into and it is an understandable one. Why do we not have sympathy and understanding for that? These amendments, if passed, would give great legal backup and standing to that family unit.

The Minister's approach appears to be a sidestepping of the issue, an unwillingness to face up to it. We must ask if it will help anybody or do any good to deny the status of a family to this group. Will this proposal harm anybody? Is it going to cause any difficulty for anybody? Is it going to affect anybody other than this family grouping? It is not, and when we in this House have a chance to assist in such a matter by giving the designation, legally speaking, of a family to this grouping without interfering with anybody else's rights and doing some good on this issue, why do we not just do it? All right, it is a forward looking notion, but we have been backward looking on too many such issues for far too long. Why do we not give an example now and take a step forward on this issue and maybe be ahead of the posse in some respects for once? There are plenty of countries where we would not be ahead of the posse in this regard.

This is a good pair of amendments and Deputy Shatter should be complimented for introducing them. We support them. I urge the Minister to think again on this issue and consider accepting the amendments either at this Stage or perhaps at a later Stage of the Bill.

I, too, support the amendments. They are excellent amendments and I am surprised and disappointed at the Minister's dismissal of them. He indicated there are serious problems in relation to them but he has not outlined those problems. Amendment No. 3 very clearly states that where the husband was not a party to the agreement to have the insemination technique used, this would not apply where this is shown to be the case in court. There seems to be no valid objection to moving in the direction which is being proposed here and I would be interested to hear what are the Minister's objections. We are not talking about moral, theological or other issues but simply about trying to improve a very forward looking piece of legislation which has been agreed so far by the Seanad and by this House. It would be a pity if these very necessary amendments were opposed by the Government. I would like to hear the Minister's specific reasons for not accepting them. He said there are grave reasons but he did not specify them.

I, too, am very disappointed with the Minister's response. My understanding of this Bill is that we are trying to equalise the rights of all children irrespective of the circumstances of their birth, that we are trying to remove from our Statute Book legislation which is insulting and discriminatory against a certain category of children and which placed upon them a certain stigma. If we do not accept the amendments put down by Deputy Shatter — I congratulate him for putting them down — we will continue to discriminate against a category of children who, through no fault of their own, were born in certain circumstances.

Where a father consents to this method I see no problem in recognising the rights of that child. The Minister referred to the moral, the ethical and the social consequences and he said we need more time to study the matter. That is usually the classical political response when we want to do nothing. The kind of people who might be opposed to this are the people who for so long prevented us from removing this stigma from certain categories of children. They are the people who want us to continually look backwards and who are more concerned with property rights, sucession rights and division of land than they are with the rights of certain children. For years they prevented progress and prevented this House from bringing forward this kind of legislation. We now have all-party support for this Bill and that is a very welcome and a very unusual step given the progress that has been made in this area in the past couple of years. Here we are again wanting to turn the clock backwards. We do not want to face up to reality as it is in 1987. That is regrettable.

When this Bill is passed, as Deputy Shatter said it will probably be years before we will have an opportunity to consider it again. There will be no excuse to put down amendments to it. We are missing an opportunity now if we do not make the amendments that we know are necessary even if they are controversial. We are legislators and it is our job to deal with reality and not to continue to discriminate against any category of children.

The Minister referred to the recommendations made by the Law Reform Commission on this matter. I was not surprised at their comments because that same body said we should not remove the criminal conversation provisions but instead we should extend them. Instead of abolishing the degrading and insulting legislation which gave husbands the right to sue other men who went off with their wives the commission said we were to extend it so that wives could equally sue. That was the kind of recommendations that body made and, therefore, I am not surprised at what they have to say in regard to this legislation.

It would be regrettable if we let this opportunity pass but obviously the Government are not going to accept the amendments. There is a majority of Deputies in this House who do not belong to the Government party and I hope they will be here to vote on these amendments. I hope we will be able to use our collective political muscle in the Opposition because the Workers' Party, the Labour Party, the Progressive Democrats and the Fine Gael Party support these amendments and I hope they will vote for them. From my knowledge of some of the Independent Deputies in this House I think they too might do so. I hope they will vote for what I think would be a very progressive amendment to this legislation. It would be a step forward and it would help many couples who perhaps feel that this method is not in some way acceptable to Irish society.

I support what Deputy Shatter said about adoption. Many adoption societies are not taking applications and it is almost impossible to adopt a child because of the lack of availability of children for adoption. We should not moralise to parents in that situation and tell them they are not entitled to use all the modern scientific methods that are available to them to have children. It is highly moralistic of us to preach to others that it is wrong simply because it might be the views of one particular church. In a republic we have to get away from that kind of narrow attitude. We have to allow ourselves to be able to avail of the modern scientific methods that would allow so many mothers to give birth to children in circumstances that a couple of years ago would have been unthinkable. Given that we are aware of these scientific developments, why should we, for whatever reason, close our minds as legislators to making provision in this Bill which deals with the status of children for children born in those circumstances? If we make these changes, we will help people to think in this way. We should not put them in a position where they feel secretly ashamed that they are in some way breaking the moral law or the legal law or that they are doing something that is not acceptable in Irish society. We should not continue to behave in that way.

I fully support the amendments and this party will vote for them. We had considered putting down similar amendments to this Bill and we were very pleased when Deputy Shatter did so because he is in a better position than most to be able to frame the kind of amendment that is acceptable in these circumstances. Rather than confuse the issue by a number of parties putting down similar amendments and all of them falling because everybody wants to vote for their own amendment, we decided to agree with these amendments and thereby have a collective input into this legislation.

Artificial insemination by a donor, surrogacy andin vitro fertilisation are comparatively recent developments in this country. It is not true to say, as was said here by Members who contributed to this debate, that there is a general agreement on how these matters should be approached and what our attitude should be. I am convinced that we need much more debate on these matters.

The whole subject of artificial insemination is a very complicated one and I would welcome more debate on it because there has been very little debate on it up to now. It raises many controversial questions about the legal relationships of children born of artificial insemination, whether by the husband or by other donor. The whole subject is a matter for decision on its own merits and in my view is outside the scope of this Bill. It would be better to await a greater debate on the matter and the issues it raises before tackling any problems that might appear to arise. I am not saying that nothing should be done in regard to artificial insemination by donor. My point is we need to have a much wider debate on this complicated subject and that is a matter for another day. I am not alone in holding that viewpoint because the previous Government, which Deputy Shatter and Deputy Taylor supported, arrived at the same conclusion when they discussed this matter in Government at the time this Bill was being discussed. That is the position. Today is not the day to make a decision on this important matter. It is for another day and we can do it when the matter has been discussed more fully by a far greater number of people.

I am very disappointed by the response of the Minister. Deputy Harney and other Deputies were correct in referring to the fact that when this Bill was going through the Seanad something unusual happened for the Houses of the Oireachtas. People did not thump the party political drum. The previous Government were open and amenable to amendment. There was a very constructive discussion in the Seanad which resulted in a much improved Bill coming from there to this House. The legislation produced by any Government is limited by the skill and insight of the parliamentary draftsman and the improvements the previous Government saw fit to make in the Seanad were made because they listened to the constructive comments made by Senators. The Minister who was steering it through, my colleague, Nuala Fennell, saw fit to take on board many of the proposals made for improving the Bill and so we have an improved measure. That does not mean that the job of this Chamber has been fulfilled. We have a duty also to tease out the provisions of the Bill, to improve it where it needs to be improved and to rectify omissions. I was not privy to the deliberations that went on in Government, and I assume neither was Deputy Taylor, on the framing of the exact provisions of the Bill that first appeared in the Seanad. It could very well be that this particular issue was an issue to which nobody directed their attention at all.

That is not true. The record shows what was said.

It is now a very serious issue. The Minister has referred to matters of controversy such as surrogacy. This proposal has nothing to do with matters of controversy such as surrogacy. This proposal deliberately omits some of the more controversial areas that we could look at and which have received a great deal of publicity in other countries where in unusual circumstances or by the use of other medical techniques children have been conceived and born. I have not heard in this country any great public outcry resulting from the fact that within Ireland there are Irish couples who are childless, who cannot adopt, who cannot conceive, for whom artificial insemination cannot work as between themselves and who have to resort to artificial insemination techniques by the use of a donor. I have not heard any major public outcry about that. It is something that has been in place in Ireland for some time and Irish couples have for many years before it was in place in Ireland were able to use such techniques or benefit from them outside Ireland and give birth to children. Indeed there has been a lot of publicity in our national media on occasion where children have been conceived and born as a result of some of the new scientific techniques.

I do not see how one can rationally extend the provisions of this Bill to adopted children in the way, of course, they should be and say that if the child is adopted the equality provisions will apply but if the child is actually conceived by one party to the marriage the equality provisions should not apply at all. I also think the point needs to be made that there is nothing, for example, in our current law which prevents married couples from resorting to AID as a technique by which to have a child. It is not illegal, not a criminal offence, not anything that our law in any way prohibits and indeed it is not anything I believe our law could constitutionally prohibit. I would take it so far as to suggest that a child born to a married couple, having been conceived as a result of AID and to whom the equality provisions of this legislation were held not to apply, would be regarded as a child constitutionally discriminated against because there is no doubt that he would be regarded within the Constitution as a child born to a marital family and as part of that family. That child would be in a different position constitutionally from the child born to someone outside wedlock. This is a subject that the Law Reform Commission in 1972 did not address. There are aspects of the areas that the Law Reform Commission referred to in their brief concluding remarks relating to this and a number of related issues which are a matter of great controversy. In many countries around the world these are issues that have been the subject matter of a vast amount of religious, theological, philosophical, legal and sociological writings. They have been the subject matter of a great many reports and indeed some of those issues, at some stage, must be considered by this House and as a preliminary issue should be considered by a committee established, be it of this House or a mixture of this House and others. These are controversial issues on which there is a diversity of opinion validly held on different sides. For example, there is the issue of surrogacy on which I would expect that there would be a similar view among all the parties in this House. That is clearly a separate issue about which I would expect most Irish people to have a similar view.

I do not think anyone in this House would support the idea of people being paid to conceive children and then handing them over as if in some sort of slave market. That is not an issue that relates to this. I know the Minister was talking generally but I regret that it should be seen in this light. This is one very simple issue. The simple question that arises here is, if a couple themselves cannot conceive and if they can, as they are free to do within our law, resort to AID in order for the wife to conceive and give birth to a child that both the husband and the wife wish to have as part of their family, is there any valid reason for suggesting that that child should in some way be treated differently, should be kept legally apart from the family, should be the subject of discrimination and placed in a sort of legal limbo that we choose to ignore because we do not want to make decisions on it? This amendment was tabled so as to enable this House to look constructively at this issue. I accept it is an issue that the Minister's officials may not have looked at in detail on this Bill. I do not know the extent to which this issue was addressed in the Seanad. There were various other issues addressed which resulted in very good and constructive amendments being made to this measure. The availability of this form of technique to allow people to conceive children is clear.

Progress reported. Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.