Civil Registration Bill 2019: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to introduce this important legislation to the House. We live in a changing society that has a more diverse range of family formations than in the relatively recent past. It is important that we reflect this in our laws and how we recognise family units. I fully intend for civil registration legislation to keep pace with the evolving nature of our society and how this diversity is provided for in legislation generally. In that way, we can assure we will treat all citizens equally. In that vein, the Bill will update and improve civil registration legislation and, in particular, address certain issues that have had a serious impact on the lives of a small number of citizens. The civil registration system works well for the vast majority, but for some, that is not the case. I hope that, as a House, we can rectify this. The provisions included in the Bill were either contained in the Social Welfare, Pensions and Civil Registration Bill 2017 or drafted by the Office of the Parliamentary Counsel and approved by the Government as Committee Stage amendments to that Bill. Although I am mindful that the current legislative programme is increasingly focused on Brexit, I hope that in introducing already drafted provisions the amendments can be progressed quickly with minimal impact on drafting resources.

I have received a number of inquires on the issue from Members of the Oireachtas and appreciate concerns about the negative effect the current law has on same-sex female couples. I have met and spoken to many of the women affected and want to see these concerns resolved as quickly as possible, which is why I wish to see these important, largely technical legislative provisions progressed as a matter of priority. Prioritising the Bill involves making technical amendments to existing legislation that will make possible the registration of births of donor conceived children of same-sex female couples to include particulars of both partners as parents in the register of births. This will allow both partners to have their particulars displayed on birth certificates and affirm their parental rights in matters such as access to passports and school enrolment. Bringing the provisions into operation also depends on the commencement of Parts 2 and 3 of the Children and Family Relationships Act 2015. As Deputies will be aware, this is the responsibility of my colleague, the Minister for Health, Deputy Harris, who is working to ensure the commencement will occur as early as possible following the passing of the legislation. These are complex issues that require the involvement of more than just one Department, but officials from my Department are working with the General Register Office, GRO; the Department of Health and the Department of Justice and Equality to ensure the appropriate legislative, regulatory and operational mechanisms will be in place to allow for the earliest possible commencement of all the relevant legislation that will allow for birth registrations of donor conceived children.

Another key provision in the Bill that I would like to see enacted quickly is to bring civil registration legislation into line with current legislation governing presumption of paternity. It will make it less onerous for a woman to rebut the automatic presumption of paternity of her estranged husband in the birth registration process. In particular, I want to avoid the need for contact with a woman’s husband where the separation may have been acrimonious or even involved incidents of domestic violence. There are other provisions in the Bill about which I intend to speak as I address the individual sections of the Bill.

Section 1 outlines the definitions of certain terms used in the Act.

Section 2 amends the definition of the "Act of 2015" in section 2 of the Act of 2004 which will facilitate the commencement of legislation that will provide for the registration and re-registration of births of donor conceived children.

Section 3 makes technical amendments to section 19A of the Act of 2004 which will facilitate the commencement of legislation that will provide for the registration of births of donor conceived children.

Section 4 brings civil registration legislation into line with current legislation governing presumption of paternity and makes it less onerous for a mother to rebut the automatic presumption of the paternity of her husband in the birth registration process.

Section 5 makes technical amendments to section 23B of the Act of 2004 which will facilitate the commencement of legislation that will provide for the re-registration of births of donor conceived children.

Section 6 provides for the inclusion of a family member as a qualified informant in the registration of a death where a coroner is involved. This will allow the family of the deceased to have a greater role in the registration process and should result in the registration of a more complete set of particulars in certain cases.

Section 7 provides for the inclusion of the forename and birth surname of a parent where a person born following donor assisted human reproduction dies abroad and it is sought to have the death recorded in the record of deaths abroad when it is operationalised. This follows as a consequence of the addition of details of a parent to the required particulars for the registration of a birth.

Section 8 provides that records of births, deaths and marriages may be shared by the GRO with a body under the aegis of the Minister for Culture, Heritage and the Gaeltacht such as the National Library of Ireland. Bringing these provisions into operation will require extensive consultation between my officials and their colleagues in the Department of Culture, Heritage and the Gaeltacht.

Section 9 provides for the application of fees payable to the Minister for Culture, Heritage and the Gaeltacht in respect of any performance by that Minister of functions carried out under the provisions amended by section 8 of the Bill. This is a standard provision in most legislation.

Section 10 provides for the inclusion of details of a parent in the required particulars to register a birth or stillbirth. This will facilitate both partners in a same-sex female relationship to have their particulars registered in the register of births. Registration of particulars of “mother” and “father” will continue to be available, but either parent may choose to be registered as a “parent”, if he or she so wishes. The section also provides that the country of birth and the country of citizenship of a deceased person are to be added to the particulars of a death to be entered in the register of deaths. This provision, as well as providing a richer source of data in the records of deaths held by the GRO, responds to the State’s obligations under the relevant EU regulation governing the provision of statistical data for EUROSTAT by the Central Statistics Office.

Section 11 provides for a technical change to ensure certain amendments in section 6(1) of the Civil Registration (Amendment) Act 2014 may apply to the registration of births where the birth occurs before the date of commencement of the section and is registered after that date.

Section 12 provides for the Short Title, construction, collective citation and commencement of the Bill.

The amendments are mainly technical in nature, but they will have a profoundly positive impact on the citizens who are affected by them. They are specific, targeted measures that have already been drafted and I intend to fast-track them in a stand-alone vehicle. I am aware that there are other areas of civil registration that need to be addressed and other issues broadly related to provisions contained in the Bill, but they can I hope be dealt with separately at an early future date. I want to progress the measures contained in the Bill with the co-operation of both Houses as quickly as possible. I look forward to hearing Deputies' views and working with all Members of Dáil Éireann and Seanad Éireann to progress this legislation as quickly as possible.

I am supposed to be sharing my time with Deputy O'Reilly, if she comes into the Chamber.

Sinn Féin will support the Bill as it is largely technical in nature. The Bill marks welcome progress in finally commencing key parts of the Children and Family Relationships Act 2015, four years after it was passed. I wish to comment on the delays in its commencement.

The Children and Family Relationships Act 2015 represented the first time the State recognised the diversity of families, including same-sex parent led families, and was pivotal in winning the referendum on civil marriage equality. It was a referendum in which there were plenty of hurtful conversations about the ability of same-sex couples to raise families. Thankfully, all parties strongly endorsed the notion that family formations were varied and should all be embraced and protected by the State. Four years on from when the legislation was passed by these Houses, Parts 2, 3 and 9 have yet to be commenced. In effect, our laws do not protect these families. Families have started and the children have grown without the legal protections that they should be afforded. This means in reality that under the current law, the non-birth mothers have no legal relationship to their child. They cannot give consent for emergency medical treatment, extend their citizenship for passports, access parental benefits, do not have automatic succession rights to their children and cannot fight for custody as legally recognised parents if their marriage breaks down. The birth mother has to sign a legal affidavit proclaiming herself to be the sole parent if she wishes the child to be recognised at all, which is an insult and an unnecessary stigmatisation process. As Part 9, with which the Bill deals, has not been dealt with in the four years since its enactment, there have been some very harsh situations related to the lack of parental rights. Many more families speak regularly to Sinn Féin representatives about the feelings they have about their families not yet being legally recognised. One such mother said:

[A]s the non-biological mother, one of the biggest emotions I feel right now is anxiety. It is taking over what should be some of the happiest days of our lives. This anxiety comes from knowing that despite being a mom to my baby, my name won’t go on the birth certificate, and that I will have no legal rights to my own child, solely due to the fact that it is my wife who is the birth mother and not me. Anxiety from being made a second class citizen, fighting to have our rights as parents recognised. Anxiety (and a bit of humiliation) from having to email my employer’s HR department and ask them to please ensure my parental benefits will be intact, even though legally I won’t be a parent at all, despite being a mom. Anxiety that comes lying awake at night from wondering what will happen to our child if something were to happen to my wife.

When this issue was last debated in the House, when the Minister brought the Children and Family Relationships (Amendment) Bill 2018 to the House to fix typographical errors in the principal Act, he stated Parts 2 and 3 which were to be commenced in tandem with Part 9 would be commenced by October 2018. He has failed to deliver on this commitment. It was the sixth time his Department had failed to meet its own deadlines in commencing Parts 2 and 3. The lack of Government priority given to the issue is shocking and reflects very poorly on the Departments involved. In June 2018 the Minister's Department was quoted in an article in Gay Community News as stating there was no legislative barrier to commencing Part 9, that it was down to scheduling the training of HSE registrars. That was over three years on from the enactment of the Children and Family Relationships Bill and the typos we are discussing tonight still had not been identified. It is becoming increasingly clear that the Departments involved simply have not prioritised the commencement orders highly.

The commencement orders were due to be made one year after passing the legislation. It is now just under four years since both Houses endorsed the legislation. Families have spent those four years aghast at the Government consistently letting them down and missing deadlines. They have written to our representatives about the upset they feel when the Minister's Department circulates press releases that do not state this is a typographical Bill that still requires the commencement of Part 9 and that the Children and Family Relationships Act only applies to some same-sex parents, with no reference to the upset or frustration the Department has caused owing to the delays. It was largely seen as Government spin in trying to gain good public relations from being inattentive in its duties and it insulted many who await recognition.

Will the Government give us any indication as to when the families will, at long last, be recognised before the law and when Parts 2, 3 and 9 will finally be commenced? We should consider that every time either the Department of Employment Affairs and Social Protection or the Department of Health has given commitments or deadlines to the parents affected, they have been let down repeatedly. Members have received these deadlines via the replies to parliamentary questions and relayed them to the parents in good faith, but they have been let down. This is the time for an honest appraisal of where we are in the commencement of Parts 2, 3 and 9. It is not for us but for the parents who have been waiting for four years or who are expecting children and are concerned that the legislation will not be in place prior to the birth of their child. Will the Minister address this issue? I understand a number of parents are watching online. Some of our party staff were told yesterday in the Department's briefing that the most recent delay was on Department of Health's side. The latest delays are not on public record. It is something of which the parents affected should be aware. We will support the Bill, but our patience has grown very thin with the Government's inaction on the issue.

I welcome the Bill. I understand the inconsistencies and oversights which this legislation seeks to correct. I also understand the other issues that it seeks to address. I will speak about the technical changes and the impact they will have for same-sex couples.

While I welcome the legislation, it is important that we be cognisant of the difficulties the State has caused for same-sex couples because of the slow pace at which the legislation has been progressed. Given that the Bill will address typographical errors made in the Civil Registration Act 2004, as amended by the Children and Family Relationships Act 2015, I seek the Minister’s guidance on when it is envisaged that Part 9 of the Children and Family Relationships Act will be commenced. Same-sex couples have been waiting for years for all Parts of the Children and Family Relationships Act to be commenced in order that they can register as the legal parents of their children. Currently, only the birth mother can register after she signs an affidavit stating she is the sole parent. The non-birth mother has no legal relationship to her child.

This is a ridiculous state of affairs when a child has two mothers, two parents, but only one can register as his or her parent. It is not fair on those kids or parents. Its outworking means that beyond the non-birth mother not being able to register as the child's mother, she can face difficulties in giving consent for emergency medical treatment for her child, having custody rights to her child, should the relationship breakdown, applying for a passport for her child under her citizenship and having succession rights to her child if the birth mother dies without a will. This is really unfair.

I have met parents affected by the outworking of these anomalies and the implications of the failure to commence Parts 2, 3, and 9 of the Children and Family Relationships Act 2015 for them and, more importantly, their families. Had this matter been prioritised by previous Ministers for Employment Affairs and Social Protection we would not be here today; it could and should have been sorted before now. The State has a long history of leaving members of the LGBTI community behind. We have tried to move past it, but the failure to fully commence legislation to help same-sex couples leaves them behind again. I know that is not the premeditated intention, but it is the outworking of a failure to prioritise the legislation. The Government originally stated Parts 2, 3 and 9 would be commenced 12 months after enactment, but that did not happen. Following this, the Minister for Health gave deadlines to commence Parts 2 and 3. Not only did that not happen but the deadline was missed five times. In July 2018 the Minister for Health brought the Children and Family Relationships (Amendment) Bill 2018 to the Oireachtas to clear up typographical errors in Parts 2 and 3. He stated his intention was to commence them in October 2018. That did not happen and no further deadline has been set. Why has the Government taken four years to commence these key parts of the legislation? If it is not negligence, what is it? Furthermore, why did the Department only realise in the past eight months that it needed to fix typographical errors? Why was it not realised in the intervening 38 months? While I welcome the legislation, same-sex couples need full information and committed timelines in order that they can be certain that their rights will be delivered on and when they will cease from being forced to live in a worrying grey area owing to Government inaction. I hope the Minister for Employment Affairs and Social Protection will be able to give some of these commitments.

We will certainly not be opposing the Bill. We welcome it, but if anything should come from this debate, it is knowing when we will have a commencement date. Will the Minister give us a reasonable indication as to when there will be a commencement date for Parts 2, 3 and 9? This has been promised on various occasions in the past three or four years, meanwhile the people who are depending on those Parts being passed continue to exist in a legal limbo. Frankly, that is very unfair. Will the Minister, when she is closing this debate, indicate a realistic timeline for bringing these very necessary provisions which merely reflect social change in the country into operation? That is the least the people concerned are entitled to expect.

Irish society has changed enormously and the law has to reflect those changes, but law written in the Statute Book is no good unless it is in operation. I was reading the Bill this morning. It is extremely complex because it involves amending the parent legislation, the two Acts of 2014. The Bill consists of a series of amendments to sections that have been amended at least once, in some cases more than once, not only by one Act but by a health Act and the Children and Family Relationships Act 2015. It is difficult to read. I have always believed legislation should be reasonably comprehensible to the man on the street, non lawyers. This is a textbook example of how not to write legislation if we have that objective which is a worthwhile one. There was a plain English campaign in the United Kingdom a couple of years ago. We will have to revive it here. I realise the technical complexities, but will the Minister consolidate the legislation as quickly as possible and publish a comprehensive guide to give people some idea before they engage the services of a solicitor which in most cases they will have to do of what they are talking about?

I welcome the provisions for donor assisted births and the right to register both parents. It is welcome that the names of same-sex parents will both appear on the birth register under the heading of parent. I would like and everybody deserves to see this provision being brought into operation as quickly as possible.

The legislation also contains a provision to rebut the presumption of automatic paternity if a couple have been married. It is more of a Committee Stage point and I will engage with the Minister on it then as I am not quite sure it achieves the objective it sets out to achieve. I would like the Minister to indicate precisely how it achieves that objective, in case I am reading it wrong or we are wasting time.

The provisions in respect of death certificates are also dealt with. I welcome the idea of having to include the country of birth or citizenship. They are necessary addenda to a death certificate. However, I seriously question the Minister's claim that she is involving the family more in cases where coroners are involved. As I recall from reading the legislation this morning, all it seems to do is put an obligation on the coroner to contact the "qualified informant" as defined in section 37 of the 2004 Act to include a relative or anybody who knows anything about the death, including somebody who happened to be in the same building when the death took place or somebody who had charge of the body afterwards. As I understand the current position, if a coroner is making inquiries, he or she will contact all of these people. What substantial change is being brought about by the section?

We have come a reasonable distance, but we have a lot further to go. We look forward to future progressive changes in that regard. The least the LGBT organisations which have been in touch with me and which represent people who have been forced to live in a legal fog for several years in awaiting these necessary changes which they have been promised repeatedly can now expect is a definitive deadline from the Government for implementation of these very necessary changes.

This is a very important Bill. The Labour Party is unambiguously and unequivocally in support of early implementation of this legislation. We are all aware of the objectives of the Civil Registration Bill 2019 which is bringing forward several amendments which are extremely technical. I concur with Deputy O'Dea that it is extremely difficult for an ordinary individual who has no lawyerly inclination to interpret or comprehend the legislation. I spent a few hours trying to read it today and was baffled by some of it. It amends the Civil Registration Act 2004. I recall spending a considerable length of time in the bunker debating it and will never forget it because it was an intrinsically complex Bill and we were hardly out of the bunker when it had to be amended again. It is no surprise, in the context of further advances in law and science, that it requires further amendment in line with our evolution as a society, the diversity of family formations, types of relationship and everything else.

In brief, the Bill makes several amendments to the civil registration process in the registration of donor assisted births and in respect of the presumption of paternity in the registration of births. It expands the role of next of kin in registering a death in cases where the coroner is involved.

I concur with Deputy O'Dea. The Bill does not seem to be as expansive as it sounds. It permits the sharing of the General Register Office's historical data and records with the National Library of Ireland and the National Archives of Ireland under the Minister for Culture, Heritage and the Gaeltacht and facilitates collection of additional details of deceased persons in order that the CSO can comply with EU obligations pertaining to EUROSTAT which furnishes statistics and so on.

While the Bill is relatively short, it is significant in its impact and import and of huge importance to the families affected. Like everybody else, my Labour Party colleagues and I have been contacted by a significant number of people. We were in the vanguard in promoting this legislation during the years. The Bill corrects an error. Two Acts passed in 2015, the Gender Recognition Act and the Children and Family Relationships Act, both made amendments to the Civil Registration Act 2004 by inserting additional definitions into section 2 of that Act. The Children and Family Relationships Act inserted the following definitions:

‘Act of 2015’ means the Children and Family Relationships Act 2015;

‘donor-conceived child’ has the same meaning as it has in Part 2 of the Act of 2015;

‘parent’, in relation to a donor-conceived child, means the parent or parents of that child under section 5 of the Act of 2015.

The Gender Recognition Act inserted the following:

‘Act of 2015’ means the Gender Recognition Act 2015;

‘gender recognition certificate’ has the meaning assigned to it by the Act of 2015.

The amendments were at cross purposes. That was part of the reason for the delay, as was the ambivalence in trying to bring legislation through. We ended up with two Acts of 2015 being referred to and because of the impossibility of interpreting the legislation properly, the relevant parts of the Children and Family Relationships Act could not be commenced. The change provided for in this Bill facilitates the commencement of legislation that will provide for the registration of births of donor conceived children, but it has been awaited a long time. A massive error was made. The Bill amends the reference in section 2 of the Civil Registration Act 2004 to the Children and Family Relationships Act 2015 as the "Act of 2015" and instead refers to that Act by its full name, which gets rid of the problem.

The technical amendment facilitates commencement of existing legislation to allow both partners in either a male-female or same-sex female relationship who have been through a donor assisted birth process to have their details shown on birth certificates. The result will be that the gestational mother will be listed as "mother" on a child's birth certificate, while a second female parent will be registered as a parent. It should be noted that while the 2015 Act provides for either a man or a woman to be the second parent of a donor conceived child, there must be a birth mother. The Act, therefore, does not apply where two men seek to be registered as the parents of a child, of which one is the birth father. Same-sex male relationships are still excluded since, under the 2015 Act, in every case of donor assisted reproduction the birth mother is always the parent of the child. A male couple may well have to go down the adoption route to deal with this issue.

The evidential value of birth certificates is a hobby horse of mine. I hope, therefore, that the Minister will not mind me going off on the issue. It may be worth noting that all of the amendments to the law are based on the notion of the birth certificate actually proving the relationships to which it relates. As a matter of strict law, they are, in fact, of no evidential value in proving age, identity or parentage. Most of us rely instead on the presumption that the husband who was living with his wife for the ten months before she gave birth is the father of the child or, if necessary, on DNA tests in order to establish paternity. In criminal law, however, the rules of evidence have been changed to make a birth certificate admissible in evidence. Section 5(5) of the Criminal Evidence Act 1992 provides:

where a document purports to be a birth certificate issued [pursuant to law] and

(b) a person is named therein as father or mother of the person to whose birth the certificate relates,

the document shall be admissible in any criminal proceedings as evidence of the relationship indicated therein.

We should take the opportunity to reform civil law along the same lines and make sure birth certificates are admissible in civil proceedings.

The Bill seeks to amend existing legislation to allow a mother to more easily rebut the presumption of paternity of her estranged husband in registering a birth by filing a statutory declaration. This is certainly a welcome amendment, particularly in cases in which there have been difficult relationships, total estrangement, or even violence. It makes it less onerous for the mother to rebut the presumption in respect of the child being registered, which will now be automatic in nature.

The Bill seeks to provide a role for the next of kin in registering a death in cases involving a coroner. According to the explanatory memorandum which was the only way in which I could figure it out, the relevant section "provides for the inclusion of a family member as a qualified informant in the registration of a death where a coroner is involved. This will allow the family of the deceased to have a greater role in the registration process which, in some cases, may result in registration of a more complete set of particulars". That is useful.

All in all, the Labour Party unequivocally welcomes this legislation and supports its quick passage. The people affected wanted it to be passed yesterday. There should be no more unnecessary delays. Like my colleagues, I received a call yesterday from two people about the Bill. Its text is fine from the perspective of most people in recognising same-sex parents in official documentation, but everybody has concerns about timing. How quickly can the legislation be enacted and implemented? This is an issue that has affected same-sex parents for a number of years. The Minister can understand that the people affected are anxious to see the amendments being implemented. A number of organisations that have been in contact with me and my Labour Party colleagues have asked whether the Minister could give an indicative date for when the legislation will complete all Stages in the Oireachtas and be enacted. Will there be a gap between enactment and commencement? That is critical because it is the lack of commencement that will kill the whole thing. We might work very well and the Minister is working well to get the legislation through and I am sure she will be facilitated in the Seanad, but we need an indicative date for when the legislation will actually take effect.

I know that some of the provisions depend on the commencement of specific parts of the Children and Family Relationships Act 2015, including perhaps Parts 2, 3, and 9 which have been referred to extensively by my colleagues. Since responsibility for the commencement of these Parts lies with the Minister's colleague, the Minister for Health, I hope there will be no procrastination or undue delay on his part or under his stewardship or supervision. It is important that the Minister give us unambiguous and unqualified replies on the question of when the Bill will be commenced.

I really appreciate the support of Deputies on all sides of the House and their co-operation in passing this legislation which has been too long in the waiting, but that is why we are placing the provisions in a stand-alone Bill in order to prioritise it, not just from a Government perspective but also from the perspective of all of us. We want to fix this anomaly in order that we can aid the families about whom we are talking and about whom Deputy Penrose spoke eloquently.

Deputy John Brady is right in saying the birth mother is the sole legal parent and guardian. That is exactly what we are trying to fix in order that the other mother or parent will have as many legal rights and responsibilities in respect of their child as the birth mother.

Deputy Ó Laoghaire talked about the commencement of Part 9 of the Children and Family Relationships Act 2015, while others talked about the commencement of Parts 2 and 3. There will be no delay. I know that probably sounds empty as we have been talking about this legislation or delaying it for four years. Parts 2 and 3 of the Children and Family Relationships Act have been passed. They just need to be commenced. In order to do so a small amount of administrative work needs to be done in the Department of Health and the HSE. The Minister for Health is working on the matter. We are establishing the national donor conceived persons register. It is being worked on. A small amount of work needs to be done in the context of the GDPR. It is also being worked on.

If I were to provide an exact date tonight, I would be making it up. As it also sounds a little empty to say I will provide it as soon as possible, I will endeavour to come back on Committee Stage or before the Bill reaches the Seanad to at least given an exact month for commencement of the legislation. There will, however, be no more delays in that regard. I personally made that commitment to some of the mammies I met at the demonstration outside which had been organised by the Labour Party. They are rightly fed up and have been waiting for far too long.

Deputy O'Dea said he was not sure how it would be made less onerous for a woman not to register her husband or estranged husband as a parent. It will be as simple as making a self-declaration. At present one has to complete a statutory declaration and seek a commencement order from the court. There will be no more of that bull. A lady will be able to self-declare the exact situation and particulars. Anything that was onerous in the past will be removed. The Deputy also mentioned changes in respect of the coroner. The changes are being made in practice, even though there is no legislative basis in the majority of cases. The new provisions will give more weight to the family member in providing particulars in the case of a death abroad.

I thank the Leas-Cheann Comhairle for his forbearance. The amendments included in the Bill are mainly technical, but they will have a massive and real emotional impact on the people affected. I am looking forward to working with Members on Committee and Report Stages to have this legislation passed as soon as we can.

Question put and agreed to.