The next slot is shared by Deputies Olivia Mitchell and Joe Carey.
Children and Family Relationships Bill 2015: Second Stage (Resumed)
I very much welcome the opportunity to speak on this Bill. I welcome that it is a reforming Bill updating family law and that it at last recognises in law and gives clarity and certainty to the status of family members, specifically parents with children, in the many different family formations. It gives that clarity and certainty in the context which prioritises the needs of the children.
It has been many years since the typical household was one of husband, wife and children but even when that was the norm, there were many differing arrangements for the rearing of children. Many such arrangements were informal and undocumented where, for instance, a grandparent, a spinster aunt or an uncle took over the care of a child, perhaps from a large family, or where the mother may have been ill. Many of these arrangements were very satisfactory and benign and worked in the interests of both the child and the parenting family. This was a very common practice but for many children it was not a benign arrangement. We know all too well the tragic tales of what happened to children, for instance, if they were born out of wedlock or where people in positions of power but with no legal entitlement often secretly and without any documentation sequestered children into orphanages, often for their entire lives, or sent them to work on farms or in households as virtual slaves or, worse, exported them to countries such as America, Canada, New Zealand and Australia where in many cases their fates still remain unknown.
These children had no rights, entitlements or power. We should welcome the fact that in more enlightened times we started to introduce legislation to protect children, including the Guardianship of Infants Acts, the Status of Children Act and the Adoption Acts. Now is the time to update family law to reflect the diverse forms of family in which many children grow up and to ensure that these children have the legal support, security and protection in their relationships with those who are parenting them.
While there has been some opposition to this Bill, it is probably more a reflection of unhappiness with the circumstances that gave rise to the need for the legislation rather than with the Bill's measures. I can understand that people may be unhappy with the decline in the traditional marital unit, but it is declining none the less. People may not be happy with single parents or unmarried parents but they exist. They may not be happy with marriage breakdown but it happens. They may not be happy with assisted human reproduction but it is happening and will continue to occur, probably with greater frequency due to fertility decline in Ireland.
Children are being born into, and living in, these kinds of relationships every day. As legislators, it is our responsibility, first, to recognise in law that such relationships exist and, second, to ensure that the children of these relationships have the same legal security, protection and certainty about parentage that children of marital parents have. Legal certainly about parentage, custody, guardianship, succession rights and maintenance is vital to a child's welfare and well-being. Children in the traditional family have it and it is now time to ensure that all children in the diverse family formations that exist also have it.
In legislating for children born from assisted human reproduction we are doing something new. In all its forms, including surrogacy, it is complex and evolving. It presents us with totally new and previously unimagined family relationships and, consequently, with new and extremely challenging legal and - let us face it - ethical questions as well. However, being new and challenging does not justify ignoring the existence of donated assisted human reproduction or DAHR. In fact, it highlights that it is imperative to regulate it and establish the status of relationships that result from DAHR.
I appreciate the concerns that have been expressed about the exclusion of surrogacy from this Bill. As the Minister for Health, Deputy Varadkar, said on radio this morning, there is an urgency about it. Issues have already arisen before the courts because of the lack of any legal framework. Indeed, the courts have changed their minds on a number of occasions, but they have clearly indicated that it is up to the Oireachtas to provide legislation in that regard. As the Minister also indicated this morning, this area is extremely complex and arcane. The ramifications are difficult to deal with and some of them have not yet been foreseen as this is an area which is evolving all the time.
The Government has decided to provide for the regulation of surrogacy in a stand-alone Bill. The Bill before us is, in itself, long and complicated enough without introducing the surrogacy issue. I welcome the progress that has been made on the surrogacy issue, including the publication of the heads of the Bill. I hope it will follow this legislation in the not too distant future.
There has been some criticism of the donor-assisted human reproduction element of this Bill. However, I would have thought that regulation and imposing controls on the circumstances of donation, which already exist, would be welcome and a clear improvement on what at the moment is effectively a free-for-all, if that is not an inappropriate expression. In future, donation must be carried out in a clinical setting. Otherwise the clarity of parentage granted under this Bill will not apply, and rightly so, as there cannot be clarity of parentage in the loose and often private arrangements that currently pertain. This clarity of parentage through a donor-conceived person register, which is welcome, is a vital element of the legislation. It will give the children of donor-assisted human reproduction access to information about their genetic make-up and to all of the health-related implications they or their children may have in the future, perhaps in perpetuity. Clarity about one's genetic make-up is essential.
I welcome the fact that the same information is now accessible to all children. It is bizarre that it was not available to all children until the enactment of the Civil Registration Bill last December. That legislation requires the mother to name the child's father on the child's birth certificate, which is a very basic requirement. I hope the next step will be a requirement for fathers to make a contribution to their children's upkeep. Most non-marital fathers take an active interest in their children's upbringing and certainly contribute to their maintenance, but there are many serial fathers who do not. In almost every western European country it is a requirement that the father makes some contribution to the maintenance of his children. It should not be left to taxpayers to carry that burden.
In giving greater responsibilities to fathers, it is also right that we should recognise their relationship to the children they have parented. That is reflected in the various categories of parents, other than birth mothers, who will have access to guardianship rights under this Bill. I have heard some complaints by unmarried fathers that the mother's live-in partner, married or unmarried, may have greater rights than they have under this legislation. They may have a point in respect of their own position but the reality is that this legislation and the defence of it prioritises the child not the parent. That is the tone of the legislation and we have to accept that it is the right way to go.
I also welcome the Bill's provision for improved access for grandparents. When families break down, it often means that the relationship, however close it may have been previously, can be completely severed. That is not in the child's interests, so it is right that we should do what we can to minimise the disruption to a child's world caused by marriage breakdown.
The legislation puts in place a number of provisions to ensure parenting works for parents and children as well as it can when breakdowns occur. The Bill also tries to ensure that a meaningful relationship exists for both parents with their children. When children are old enough, they can be consulted on what kind of custody, access and maintenance arrangements are put in place for them. Where children are not old enough, an expert can be appointed to advise the courts on the best arrangement for the children's parenting.
Two points stand out for me in this legislation. First, if people are worried about this Bill, there is absolutely no change whatsoever in the constitutional rights of birth mothers and marital fathers. The second point concerns the diversity of relationships in families, which has often been stated with regard to this legislation. There is the traditional marital relationship, the non-marital relationship, the separated-previously married relationship, and separated non-married couples. We have same-sex couples and into that mix we also have donor-assisted human reproduction. We have relationships that form and break up, followed by new relationships. These diverse relationships can be complex, challenging, messy and unsatisfactory on a range of fronts. If they break down they are often the cause of major grievances between couples, not just over property and money but also over maintenance, guardianship, custody and access to children. These grievances are not always resolved in a way that makes both parties happy. Neither will this Bill, to be honest, but the legislation is not about the happiness of adults. It is about children and what arrangements best serve their interests in respect of the diversity of relationships in which they are increasingly living.
Bearing in mind that a child may move through a range of relationship types over his or her childhood, the framework we put in place is vital to children's well-being and future. I very much support the legislation.
I welcome the opportunity to contribute to this important debate. I welcome the publication of this ambitious Bill, the Child and Family Relationships Bill. I congratulate the Minister, Deputy Fitzgerald, on bringing it before the House. I also acknowledge the work of the former Minister, Deputy Shatter, on this Bill and in the area of family law. The Bill is another essential tool in the protection and underscoring of children's rights in Ireland.
I have no doubt that there will be a substantial debate in the House on this legislation. Allied to this there are many observations and recommendations from expert parties such as the Office of Ombudsman for Children, which will also inform us as the legislation progresses through the Houses of the Oireachtas.
This is substantial child-centred legislation which will address a series of anomalies created over the past five decades in our family law system and thus ultimately offer far greater protection to our children. The Bill will put children at the heart of family law, provide legal clarity on various family types and address issues faced by children in non-marital families, as well as addressing key issues relating to guardianship, custody, access, maintenance, adoption and parentage.
The law to date has not caught up with the changes in the family. There are now many pathways to parentage. The Constitution places great importance on the family and Article 41 defines it as "the natural, primary and fundamental unit group of Society". However, the courts have narrowly interpreted the constitutional family as only including marital families. Cohabiting couples, civil partners, lone parents, unmarried fathers and grandparents have all in essence been excluded from this definition. An increasing number of children are being cared for in non-marital settings. For example, one in four children live with lone parents and almost one in ten live with unmarried cohabiting couples. Despite this the law does not provide a mechanism whereby the unmarried parent's relationship with the child is recognised. This can impact on their day-to-day parenting role, for example, in giving consent to medical treatment or granting permission for school trips.
There is diversity now, maybe even fluidity to the family that has not been correctly acknowledged. Existing law in Ireland does not really recognise the realities of family life in the country we live in today. The Bill is designed to modernise the law regarding the parental rights of children living in diverse family forms. The Bill will address the needs as they arise of children living with their married parents, their unmarried parents, a parent and that parent's partner, or a grandparent or other relative who is parenting the child.
As the Minister said last night, the Bill represents a watershed in the development of Irish family law. Children are entitled to security and stability in their family situations. Children are entitled to clarity in law around the issues of parentage, guardianship and access. The Bill merely, but fundamentally, modernises Irish law in a range of complex and sensitive areas and puts the child at the centre.
The Children and Family Relationships Bill is long overdue and I wholeheartedly support it. I look forward to its passage through the Houses of the Oireachtas.
I believe the way this is being done is very wrong. Very rarely in my time in the House, other than with finance and consolidation Bills, have I seen a Bill this large being published. It is a very large Bill, containing 172 sections and an amount of detail. The Minister published it last Friday within the Dáil. That goes against all the protocols we were assured we would have about Dáil debates. There are meant to be two weeks between Second Stage and Committee Stage to allow people prepare amendments. There are also meant to be two weeks between the Committee and the Report Stage. I understand the Minister intends to throw all this aside for no reason. If the Minister could not get this in on time, the only thing she could do with the timescales is to push them all back.
As we, who are experienced in putting legislation through, know, rushed legislation, particularly complex legislation, tends to be very bad legislation. So-called consensus-driven legislation - let us not look at it and examine it for unintended consequences - tends even in the simplest of cases to lead to mistakes being made. My experience of doing Bills was that as I went through each section in detail and analysed a Bill in detail, in many cases the drafters came back or I went to the drafters and asked if they were absolutely sure certain things were correct. As the Minister knows, ministerial amendments arising from drafting errors are many in most Bills.
I was looking at a much smaller Bill, the Animal Health and Welfare Bill, which ran to approximately 40 sections. It took more than a year going through the two Houses. In fairness, to the Minister's colleague, the Minister, Deputy Coveney, he went through that Bill in a very meticulous manner. He engaged with the Opposition in a very thorough manner. We got excellent briefings. He accepted Opposition amendments. That was an uncontentious Bill. Nobody in the Dáil is against the principle of animal health and welfare. However, when we started looking at the small print, the Minister accepted there were many amendments to be made.
After he had gone through an exhaustive process on Committee Stage, the Minister postponed Report Stage because more amendments were being drafted. In fairness, on Report Stage he came back with many amendments that improved the Bill. He also took on board all the reasonable proposals put by the Opposition. As the Minister, Deputy Fitzgerald, knows when dealing with a Bill, in many cases an Opposition Member puts forward a thesis and the Minister is able to explain why that thesis does not stand up, perhaps because it is covered in some other section of the Bill. Most people in opposition accept that. However, where the Opposition made a good case, the Minister, Deputy Coveney, accepted it.
In fact, I welcome the Bill wholeheartedly because there is a need for reform. However, I argue that it is highly unlikely that there are not drafting errors and issues of unintended consequences within the Bill. Why would this Bill, which is immensely complicated, be so different from all the other Bills that come into this House? What is so magic about the way this one was drafted that it does not need proper parliamentary scrutiny? What is the rush?
I remember making a mistake in my early time as a Minister in rushing one small part of additions to legislation. It ended up costing me more grief than all the legislation I had done both as a Minister of State and as a Minister subsequently.
I ask the Deputy to deal with what is in the Bill or what could be in it.
The procedure is vital here because the problem is that we will never get to deal with what is in this Bill. This is the problem with the process being driven by this Government for some agenda that is hard to understand. Good process is good process, and it is good process with every Bill. If we want to see the dangers of what I would call this consensus-driven "let's get it through and let's not look at the words" approach to legislation, I can give a simple example. In everybody's rush to show goodwill towards the Good Friday Agreement, nobody examined the wording put forward in the referendum that followed the Agreement. They were two paragraphs relating to the wording of the articles that replaced Articles 2 and 3 of the Constitution. The wording stated that everybody born on the island of Ireland was automatically an Irish citizen. The Minister might remember that subsequently we had to have a second referendum - I am sure Deputy Ó Caoláin remembers it - because people who did not have any status in the UK because they were refugees or asylum seekers were coming over to Belfast overnight and having a baby and that baby automatically became a citizen of Ireland. As a result of us not thinking through the propositions, we had to have a second referendum saying, "sorry, that's not going to be the way it is and we should have looked at this the first time". That only related to two paragraphs and the Minister is telling me that there are no little issues like that in 172 sections.
The second thing that fascinated me was previous Deputies welcoming the Bill but saying that the family is defined in the Constitution as only being a marital family and then welcoming the fact that all these changes recognising all these different types of families are coming in now. The hyperbole that is sometimes used around here is mind-boggling and I accept that some of my own colleagues have used the same hyperbole. As the Minister knows, if the Constitution did not provide for everything in this Bill, she could not bring it in. Of course, the Constitution allows us to recognise that there are many types of family and that children are raised in very many types of situations. In fact, I saw a complaint in a newspaper last week by Fintan O'Toole about the Constitution not defining the family. I always have believed that, for very good reasons, the very cautious and clever drafters of the Constitution took a studied and purposed decision because they knew the complexity of families. John J. Hearne was very much involved in the drafting of the Constitution and was by all accounts exceptional. The drafters of the Constitution knew that then that, as is the case now, there are all sorts of different arrangements, situations and human realities and it was much better to leave that undefined.
The reference in the Constitution is about the protection of the institution of marriage on which the family is founded so it does not say that married families are the only families. However, it does say that, in general, stable marriage contributes to society, everybody's good and, in particular, very many happy homes for very many children. Most of us would accept this as a general principle. It does not say and it does not mean that in all sorts of other circumstances, other arrangements do not give very good outcomes for children. It just says that marriage is an important institution. If it was not an important institution and if the Government did not recognise the importance of it or think it was of any consequence in society, the logical and simple thing for it to do would be to abolish marriage as a civil concept because it would not be of any importance. Of course, the Government knows that irrespective of religion or no religion, every society sees the commitment of people to each other as being of fundamental importance.
Unfortunately, I have not had the time to go through the 172 sections because there were many other things to be done over the weekend. I believe that, in general, everything here in terms of adoption and so forth should be welcomed. An issue has been raised that the Minister might explain. My understanding is that, at the moment, there is a qualifying word relating to single people adopting. In other words, we provide for single people adopting but there is a qualification relating to the particular circumstances. I have no problem with that being extended to same-sex couples but I am curious as to the reason the word "particular" is taken out. I accept that this can be very much the preferable solution in cases but I understand, under the current situation in law, all things being equal and allowing that there are no particular circumstances that favour a single person, which we are now extending to same-sex couples, the presumption is that a heterosexual couple is favoured. Why are things being changed, all things being equal, and I am saying "equal" because there are all sort of circumstances where they would not be equal? It is fair to say that many people would question that. This is not to say that, when one takes in individual circumstances, one would not wind up with either a single person or a gay couple adopting but it says that all other things being equal, a heterosexual couple would be favoured. I am wondering how that fits in with the protection of the institution of marriage in terms of the Constitution. These are the kind of little issues that need to be teased out.
I received a rather complex e-mail the other day from a single father who welcomed guardianship rights for fathers but raised all sorts of technical issues with me that, again, need teasing out. His view was that guardianship should not be automatic but that the father should be able to apply for it. In other words, for technical reasons, he was against automatic guardianship for all fathers because he believed that if they have not shown any interest, they should not automatically get something they have shown no interest in. This is interesting because it was not coming from the side of the argument one would necessarily expect it to have come from. Again, I would like to see all these things teased out because, as we know, sometimes when ones solves one problem, one creates another. I have not had time to look into exactly what has been proposed here and the issue this person raised. I am sure that over the coming week, and the problem is that it is only a week, now that the text of the Bill is available, many other groups on every side of the debate will come forward and say that the balance is not quite in the right place and that it should be shifted.
The issue of donor-assisted reproduction arises in this Bill without us knowing the answer to a question that is fundamental.
In 90% of cases, assisted reproduction involves a man and a woman who provide the genetic material required to become the parents. They are not the people about whom I am speaking. In cases of sperm donation and cases in which a man wants a child but does not have a female partner, we are into the realms of surrogacy. Many countries across Europe have in place restrictions or a ban on surrogacy. As a Deputy, I would like to think this one out carefully. There are many issues that need to be teased out. It is not simple. Is it right - I do not know - that a woman in this country or any other country be paid commercially to carry a baby? Is it right to commercialise vulnerable women in this way purely for financial gain? Is it right to expect them to sever all ties and have no attachment in life to the child that may or may not be of their genetic material? That is a debate we need to have. As I said, many of the major European countries have chosen not to go there.
Another issue that arises is that of relationships in which a family member is used as a surrogate. There have been some very interesting cases in this regard. I was on a radio programme the other day during which I listened to a case raised with Pat Kenny, which brought to mind the old saying: "If your father's son was my father's daughter," and the games we used to play as children, because the mother turned out to be the child's aunt and so on. This is a hugely complex issue. While the number of cases of surrogacy will be few, we will need to regulate this area. I do not understand why we are not addressing that issue within this Bill because, as I understand it, it has an impact on some of the provisions of this Bill.
The issue of donor-assisted pregnancy and so on. My understanding is that a baby produced in this way will be entitled, on reaching 18 years of age, to information regarding his or her genetic mother but will have not have any right to a relationship per se with the mother, and vice versa. The Minister might say that the same currently applies in relation to sperm donation, which is another issue. However, without being sexist, I believe that biologically there is a slight difference between the two situations. In one case the sperm is donated and in the other a woman somewhere has carried the baby for nine months. To tell me that is the same thing is, in my view, to misunderstand what equality is. Equality in these cases does not mean one equals one; rather, it means same and equal. It means equality of rights and equality of standing. Sometimes, to ensure equality one has to favour one situation over another. As I have often said, if we were to treat all of the children of the nation equally we would never provide an SNA in a classroom or resource teacher hours, because if we provided that service for the child with the disability we would have to provide it to every other child. Equality means that one recognises a situation as different and takes compensatory measures to deal with the inequality. In this case, because it is not an issue of mathematical equality, special rights must be afforded to mothers. While the status must be equal, there must be a recognition that the relationship with the baby will not be the same in both cases.
I congratulate the Minister, Deputy Fitzgerald, on her introduction of this Bill, which is complex but rational and workable legislation, and for being so progressive in carrying on the type of reforming work commenced by her predecessor, rather than leaving things as they are and taking the "cute" political option.
Like Deputy Ó Caoláin, I come from a part of the country where people tend to look at issues with a certain amount of pragmatism and rationale. We pride ourselves on that. I would like to dispel a few of the myths and distortions around this Bill. Many people do not appear to understand what is at issue, which has led to many popular myths around the legislation. It is known to many but not to all that 36% of children are born outside the traditional family model, 352,000 children are currently cared for by lone parents and only 233 children are currently being reared by same-sex couples. Let us be proportionate about this. It is also worth mentioning that these 233 children are being reared by same-sex couples irrespective of the effects of this legislation.
Adoption is a very complex and difficult process, and our provisions must fit with the Hague Convention. To obtain an assessment for a declaration of eligibility, an applicant must apply in the first instance to the HSE, which is a complex and rigorous process that lasts as long as seven years and includes interviews, group sessions and one-to-one sessions. To put this in perspective, between January and September 2014 only 83 children were adopted in this country. Because of other progressive legislation, the number of children available for adoption has radically decreased. Also, foreign adoptions must comply with Irish criteria for eligibility. Foreign adoption is an expensive process that is often fraught with delays. It is important to put that background information on the record.
We now have blended families in Ireland, including one-parent families, children living with cohabiting parents or same-sex parents, and children living with grandparents or other members of their extended families. The composition of the traditional Irish family is ever-changing and it is important that we as legislators ensure that our laws respond effectively and comprehensively to reflect these changes. Every child living in this country is entitled to legal clarity, security and stability. This Bill seeks to ensure that.
Part 4 of the Bill, which amends the Guardianship of Infants Act 1964, will enable the court to appoint the step-parent, civil partner, cohabiting parent or guardian with custody of the child to nominate a temporary guardian for that child. This will be particularly important for anyone who is a foster parent in that it allows them a legal right to access and custody. This is an important aspect of the Bill.
The inclusion of this part is also important in instances in which a parent with sole custody of a child falls ill and is unable to physically care for the child. Under this provision, such parents can now nominate a temporary guardian for the child. That is a simple but important reform that will be welcomed in the real world.
Section 40, which is very important, inserts a new subsection (4A) which seeks to make it more straightforward for unmarried fathers to obtain guardianship rights for their children. We have received major complaints in that regard for years. The process will be made more simple. When a relationship breaks down for whatever reason, many fathers feel their rights of access to their children are unprotected under current family law. I welcome the inclusion of section 40. Grandparents can also apply directly to the court for access, which is very important. Often, access to a child by one set of grandparents is removed in an acrimonious family breakdown. That is a very important reform.
Given the time constraints, I will move quickly through the important points I wish to make. Typically, in court proceedings involving children, there are individuals and parties present who claim to represent the voice of the child in question. Children are now to be provided with an option for their voice to be heard. That is an important provision. Traditionally, it was assumed that X and Y knew what was best for a child. Now, if a child is capable of making a representation of his or her view of what is right for him or her, that will be taken into account. An interesting and worthy provision is to be introduced for children under two years of age in allowing for an expert view to be taken into account in a decision. Such provisions are all important.
The crucial section relating to same-sex partnerships in this very complex and major legislation has inevitably garnered all of the publicity surrounding the Bill. In the case of same-sex partnerships, where one or neither member of a couple is the biological parent of a child they wish to adopt, the legislation will ensure that the child in question gains a legally recognised parent. It rightly gives the child legal recognition, rights of succession and other such rights. Last year, GLEN made a submission to the Department of Justice and Equality based on its findings that a substantial number of same-sex partners were forming families and parenting children. That reality exists outside of the gates of Leinster House. It is shocking to think that such families currently exist without the protection of a secure legal framework. That is essentially what the Bill is doing - creating a legal framework for the protection of a child in such a situation.
I made the point at a meeting last night that any same-sex couple will go through the extraordinarily rigorous process - rightly so - of adoption and that all of the rigours of the law apply in that regard. The popular mythology that it will be easy for a family unit that might not be capable of rearing a child to adopt one has no validity. The tragedy for many eligible and wonderful people seeking to adopt children currently is that they cannot access children because of other progressive developments in society. Cohabiting couples must have been living together for more than three years to become eligible to begin a process that could last for another seven to ten years and might never be completed. Those are important, practical aspects of the legislation.
We must legislate for all of the human realities and myriad complex family structures that exist outside the Chamber. In all instances, the paramount responsibility on us is to ensure that the child's rights are looked after and that the child is central to the process. That is the reason for the rigorous adoption process. We wish to ensure that children will have rights of succession, good care and all the other rights of a child, including intervention by social services where the rights of the child are not sustained. The more one legitimises, legalises and formalises the home situation in which children live, and the more one embraces them in law and brings them into the country's legal processes, the more likely one is to achieve the optimum outcome for the child. It is proper that children achieve the best outcomes within legal structures. In that sense, the voiceless one at the centre of the process is the infant child. That is where we must ensure the best possible protection. My submission is that the legislation recognises the variety of situations into which a child can be born today, legitimises those complex situations and brings them under the remit of proper processes and practice. That is a reasonable thing to do and it is what should happen. To shirk this duty would be to discriminate against children both born and unborn.
I commend the Minister on her introduction of the Bill. After listening to the contributions of previous speakers, I am minded to observe that probably the most important stakeholders in the debate are not those in the Chamber but the children observing proceedings in the Visitors' Gallery. The Bill we are debating is about their lives, their futures and their reality. To put the legislation in layman’s terms, it is essentially about putting children at the centre of the legislation and making law to effect the betterment of children. In many cases, life runs very smooth for people and they exist in relative bliss, but when difficulties arise the legal system can prove to be a considerable obstacle to progress in a child’s life and ensuring that a child’s best interests are served.
It is a personal honour and privilege for me to contribute to the legislation. The Government often talks about its achievements and is often criticised for its failures. However, what I personally am most proud of as a member of a Government party for four years is what we have done for children. We have put children at the centre of the Constitution through the referendum on children’s rights. It was the same Minister who is present today, Deputy Frances Fitzgerald, who led the campaign on the referendum. Unfortunately, the legislation is tied up in a Supreme Court case and we must wait to give effect to it. In effect, we are recognising the rights and needs of children and putting them in the Constitution. Today, we are debating legislation concerning the introduction of a legal framework to support and recognise the different arrangements within families that are outside the norm, in order to avoid the grief, difficulty, pain and huge emotional trauma that ensues for parents and children in cases of family breakdown.
To put matters in context, the previous serious piece of legislation in the area dates back to 1964. It was the Guardianship of Infants Act. That is a long time ago. At that time, approximately 3% of children in the country were born outside the typical, traditional arrangement of a married mother and father, whereas today, of the approximately 70,000 babies that are born every year, 25,000 are born into arrangements that are different from those we consider to be traditional. That is more than one in every three children. It is high time legislation caught up with the reality of life.
I commend the contribution, effort, passion and vision brought to the Bill by the previous Minister, Deputy Alan Shatter, who had personal conviction in this area. His contribution to the lives and well-being of children constitutes a legacy that will live for a long time to come. I put on record my appreciation of his vision in bringing about the Bill, as well as my appreciation of the current Minister, Deputy Frances Fitzgerald, and both Ministers' staff and advisers.
One of the first stories one learns when one goes to a Christian school is the famous story about Joseph, Mary and baby Jesus, which we have all read. Joseph was a foster father. One of the rights that will be introduced in the Bill is that a foster father can apply to become a guardian of the child in his care. I am sure Joseph would have been happy to avail of that right 2,000 years ago. That puts in context how long the story has been going on and how long the need has existed. People might think it is a modern phenomenon that families are not made up of the traditional married mother and father, but it goes back 2,000 years to Joseph the foster father.
One of the greater privileges I have had in life is to be a foster father. I happen to have the honour and privilege of sharing my home with children who for a variety of reasons are not in a position to live in their own homes with their mothers or fathers. The greatest gift my family has received from being in a position to share our home with other children is the understanding my children have that life is not black and white. They asked me at a very young age why these other children were not living with their mothers or fathers or why a particular child did not have a dad. They realised at young age that life can be very difficult and challenging and there is no exact norm or definition of "the family". It is important that legislation catch up with this. I very much welcome the provisions in the Bill that will help foster parents.
Anybody who has had the privilege and honour of dealing with children in the care of the State - I know the Minister has a background as a social worker - will agree that what is very striking is that every one of them will be drawn back to their genetic mother and will always want to go back to their birth mother and father. No matter how much love and affection is showered on them and what provisions they are given, there is a natural innate attraction in all human beings to a sense of identity - to know who they are, to know their mother and father and, ideally, to live with them. Even if these children stay in the care of the State until they are 18, as soon as they are 18 the first thing they will always want to do is to seek out and try to find their birth mother and go back to the parent, irrespective of the circumstances of that person at the time.
Many provisions in the Bill will allow children to find out who they are and who their birth mothers and fathers are. Legislation was recently passed providing that a father's name must be on a birth certificate, which is a very welcome development. A child will grow up to be a young adult and will yearn for this knowledge some day.
As Deputy Ó Cuív stated earlier, the Bill is a huge piece of work, and it will be very challenging for us as a body politic to get it right because many issues will arise in the debate. I welcome the amount of time allocated to the debate. I wholeheartedly welcome the provision for the child's voice to be heard, which has not been the case heretofore. This is one of the best elements of the Bill. It has been an aspiration and has been spoken about but is not based on law. It will be mandatory for the courts to take into account various aspects, such as domestic violence and other factors.
The appointment of court welfare officers is referred to in the Bill, and this is a very welcome development. The Cafcass officers in England are a very good example. I presume the Minister is aware of them. They are welfare officers with child qualifications appointed by the courts. The Bill does not address satisfactorily who will fund this service, or give a commitment in this regard, because it will have costs. A marriage break-up or any separation is a very costly, difficult and challenging event on many levels. A two-income household can all of a sudden become a one-income household. I would like to see the Bill be more specific and give a commitment on the part of the State to deal with funding for the appointment of court officers to cases in which the welfare of a child is an issue, so that people with child qualifications will be in place. I look forward to the Minister's response on this and would like to see all of the boxes ticked.
We legislators will not be in the courtrooms when real cases and real-life experiences will play out, and somebody will have to make a decision based on the laws we pass. I find the provision on cohabitation interesting because I am not sure how somebody will prove cohabitation if it is a matter of contention. If a parent claims to have cohabited for 12 months, three of them after the birth of the child, but the other parent disputes this, I am not sure how it will be proved. It will be up to the courts to deal with this burden of proof. Perhaps we as legislators could look ahead and make it easier for the courts by defining this more clearly. Marriage and other arrangements have a licence, and people can prove these, but I am not sure how someone can prove cohabitation if the issue arises and it is a bone of contention, as it is very likely to be in many of these cases when one parent is looking for guardianship.
I welcome the Bill and look forward to contributing further to the debate. I look forward to the Minister's response in due course to the issues I have raised.
The Bill is welcome and long overdue. I take this opportunity to commend the Minister on its introduction. Much of the Bill is without controversy and has been long awaited. It represents a major change to family law in the State. For many families it will bring legal recognition in line with reality. It is a very substantial piece of legislation which spans 170 sections, relating to the extension of guardianship, custody and adoption rights to different types of families. Importantly, it refers to the best interests of children and allows for increased guardianship for unmarried fathers and increased rights for grandparents.
It must be noted that while it is very important for so many families throughout the State, the Bill will result in no change for the majority of families. The Bill will enable civil partners and cohabiting couples who have lived together for three years to jointly apply to adopt, something they can do individually at present. It will also allow one member of a same-sex couple to be eligible for adoptive leave. Where a spouse or partner has lived with a parent for three years and looked after a child for two years, he or she will be able to apply for guardianship or custody. The legislation will allow a relative of a child to apply for custody if he or she has looked after the child for 12 months where no guardian is able or willing to do so. Unmarried fathers will be given automatic guardianship rights if they have lived with their child’s mother continuously for a year, including for three months after the birth.
Some of the more controversial aspects of donor-assisted human reproduction, DAHR, are being addressed - namely, the ending of anonymous gamete donation. This will allow all children conceived in this manner to trace their genetic identities. The Bill provides for the establishment of a register through which all children who are born via assisted human reproduction will be able to trace their donors. I will return to this later.
I will focus mainly on the elements that relate to assisted human reproduction, on which there are some issues that I wish to have clarified. I believe some of the provisions in the Bill require amendment. I hope the Minister notes these and, if she accepts the points, that she will address them on Committee Stage. The first of these is on father's rights. We would like to see the establishment of a central register for statutory declarations for joint guardianship and a change to the provision to which I referred that requires an unmarried father to live with the mother, as this might not be practical in all cases. I know of such cases in my community, and this fact requires an amendment to the Bill. What is required is that the father has lived with the child's mother continuously for a year, including for three months after the birth of the child. It could also be argued that this discriminates against the less well off in our society, for whom the prospect of living together may be but a far-off ambition.
If the Minister wishes to explore the matter with me, I could instance real cases that I am familiar with.
The Bill sets out a national donor-conceived person register to allow children conceived in this way access to his or her identity. This is fair and just. It also sets out obligations for donor-assisted human reproduction facilities, parents and donors as well as information that will be required for the register.
Section 5 deals with parentage in cases of DAHR and sets out the position on the legal parents of a child born through DAHR. The birth mother will always be a parent of the child. The child's second parent will be the birth mother's spouse, civil partner or cohabiting partner if the birth mother and that person consent in advance of the birth.
Section 6 outlines the procedures that will apply to the consent of a donor of a gamete. This is a necessary provision. There are also provisions whereby donors can direct their gametes to a specific couple. Sections 7 through 16 deal with other elements around consent, the revoking of consent and information to be given relating to DAHR procedures.
Section 17 has an important provision that will make it unlawful to become a donor for financial compensation beyond reasonable expenses. It will, however, be possible for the donor to be refunded for any reasonable expenses that may arise from making the donation. It is important that becoming a donor is not commodified and I believe the House is of one mind in this regard.
Section 18 relates to retrospective recognition of parentage of certain donor-conceived children born before the commencement of this part of the Bill. It applies to any donor-conceived child born in the State following a DAHR procedure carried out in a clinic or hospital in the State or in a DAHR facility outside the State. The second parent must be able to demonstrate that she or he knew at the time of the DAHR procedure that she or he intended to be a parent of the child. The donor must be unknown to the birth mother or intending parent. In this case an important question is almost invited. Why would or must the donor be unknown to the mother? What of parents who had the aid of an extended family member or friend? There is an absolutism here and I am somewhat unsure that it is as it should be. Again, I would be inclined to revisit the matter on Committee Stage. Section 19 outlines the District Court procedure that will apply where a declaration of parentage is sought in respect of a donor-conceived child born before the commencement of this part.
Part 3 deals with DAHR. Section 23 sets out the obligations on a DAHR facility and states:
A person shall not perform a DAHR procedure unless the person is—
(a) a registered medical practitioner, or
(b) a registered nurse.
This section appears to preclude what could be termed DIY or do-it-yourself donor-assisted human reproduction, a practice that, as the Minister is aware, currently occurs. Can the Minister clarify whether this is the case? What does she know of these instances? What of those who have decided to go this course already? Will any provision be made for them? Certainly, there are cases such as those I have referred to. What does the Bill mean for them?
The remaining sections deal with information required by DAHR facilities, the regulation of such facilities and the establishment of a register for those conceived by DAHR. They deal with access to the register, what information may be released and to whom as well as clarification that counselling has been received prior to this information being handed over.
Like many other Deputies, I imagine, I have been contacted by some working in DAHR clinics who have what appear to be valid concerns about certain aspects of the Bill. I will outline some of these concerns. They are concerned that current patients will be retrospectively punished by certain sections. While they recognise that allowances have been made for certain groups of patients, they believe there are other groups for whom no provision has been made.
The first such group consists of patients with anonymous sperm donors selected, paid for and currently in storage in Irish clinics awaiting use in treatment. Should there not be some consideration for these patients in order for them to complete their treatment cycles? I understand that in the region of 600 to 700 patients throughout Ireland will be prevented from completing their initiated treatment following the enactment of this legislation. One possible solution might be that the initiation of new anonymous treatment cycles could be precluded from the date of enactment rather than the retrospective application. A transition period of 12 months from the date of enactment to allow these patients to complete their treatment cycles could be allowed as well. There are options in this area and I appeal to the Minister in this regard given the circumstances and on behalf of those who will clearly be severely and seriously impacted.
The second group consists of patients entering into anonymous egg donation within the past six months whose embryos have not yet been created. It should be remembered that the egg donation process is not immediate. The process from initiation to completion can take up to six months and, on occasion, longer. This is due to the fact that following donor selection the donor may not, for medical, social or a variety of other reasons, 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 remains outstanding. By enacting the legislation as is, this group of patients, who are several months into the process of egg donation, will be precluded from completing their treatment. Again, one possible solution might involve the initiation of new anonymous treatment cycles being 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. I invite the Minister to take these possible amendments on board or to make them her own. I am keen to see that the legislation is inclusive, fit for purpose and has the compassion required to respond to the circumstances that many people find themselves in. These people are dependent and hopeful that legislators will be mindful of their situations.
There is one further area in which concerns have been raised by certain DAHR clinicians. This relates to 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 become or is about to become pregnant, she would have a particularly small window of opportunity for an attempt at a second child. Might it 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 periods is longer? Again, I commend this change to the Minister.