I accept a good deal of the constraints which the Minister has identified under the Constitution in relation to the rights of married parents, but there is room to consider very seriously an amendment along the lines of what Senator Ryan has in mind but with the kind of safeguard that I mentioned when I first spoke in support of this amendment. I support the idea of considering the circumstances where parents could recognise that they cannot bring up their child but want to accelerate the process of having the child adopted and to facilitate it positively because they know they are unable to exercise any parental role and responsibility. This should not be based on the decision of the parents, partly for the reason the Minister has identified. It should not be the parents deciding solo and automatically getting an order. It should be the parents being able to indicate the reasons they believe they cannot exercise their parenting role and for the court to be satisfied, taking into account the rights of all parties including the rights of the child and the best interests of the child, whether it is appropriate to make an order.
There are circumstances at the moment where married parents consent to the adoption of their child under Irish law. This is where the child was placed for adoption and the natural mother subsequently married the father of the child. The child is then legitimated by that marriage, but the child remains eligible to be adopted, provided the birth has not been re-registered as being a legitimate birth under the 1964 Act where there is a provision that that child would remain eligible for adoption but the natural father who is now the married father would have to consent. Both parents could consent under current Irish law to the adoption of their child. That is provided for because the child had been placed before the natural mother married the father. Therefore the child was eligible to be placed for adoption and it would be considered that that would be an appropriate circumstance. If the natural father did not consent and could not be deemed to have agreed to place the child for adoption, it is possible that the child would not be adoptable because the father had not, as a married father, consented.
The Minister was a little bit dogmatic in his first reply. It is not quite as black and white as the Minister was saying. Under Irish law at the moment in particular circumstances married parents can consent to the adoption of their child without all the safeguards which are in this Bill.
Now we are facing a different situation. We are going to broaden the possible circumstances where a child can be eligible to be placed for adoption, and eligible to be adopted, although the child is a child born within marriage of married parents. I go a very long way on the necessity to be very careful in the approach and I admit and take on board the constitutional difficulty. However, there is an issue to be addressed which is where the failure is not so much a judgment on the parents by somebody else but is, perhaps, a judgment by the parents of themselves saying: "We cannot cope. We are living apart". One may be an alcoholic. These may be very difficult circumstances. They believe they cannot under any circumstances parent the child. They have not been doing so. The child is in a home. They know this, admit it and consent.
I now come to the point raised by Senator O'Connell querying the nature of that consent. That is a problem which exists at the moment in adoption law. It is a problem which exists with natural mothers. It is a problem which must cause anyone concern. A number of these natural mothers fit exactly into the category which Senator O'Connell was talking about. They very often are young, not very experienced, a bit intimidated by social workers, and so on, and yet the courts regularly make an assessment of whether it was a valid agreement place, meaning a valid agreement to place the child for adoption. Then, even if the natural mother has not signed the final consent form, her consent may be dispensed with if to do so is in the best interest of the child.
Under the Constitution there is a difference between the position of the natural mother who does have a constitutional right to the care and custody of her child but does not have an inalienable and imprescriptible constitutional right. Bearing in mind the Minister's reference to the constitutional position, yet, it is correct that there is both a right and a duty, but I would not go so far as to say that the parents cannot have a self-assessment, not the final word, and this is the point I am making. I am not supporting Senator Ryan's amendment as it is presently worded. Senator Ryan's amendment may, perhaps, be putting forward the proposition that parents can self-assess their own failure and consent and he wants the process then to be that the adoption order be made.
I am saying something different which is that, if the parents self-assess that they cannot cope, that can be a substitute for the health board adducing evidence of the failure over a 12 month period, the predicted failure up to the 18th year of the child and so on, of the capacity of the parents. It could be, for example, that the form of the approach might be that the parents would self-assess themselves as being unable to cope and, on that basis, the court would assess whether in fact there was a failure on the parents as they have self-assessed and as they wish, therefore, to consent to an adoption order being made in relation to the child.
I would like the Minister, while bearing in mind the constitutional framework and the difficulties, to have a look at the issue. Perhaps the circumstances would be relatively unusual, but let us not blind ourselves. We have a high abortion rate in this country. Abortion is the termination of an unwanted pregnancy and it is high in this country. We have to admit that. We have unwanted pregnancies and unwanted births in marriages. We have marriages which break down. We have enormous social and other problems within marriage and we are providing in this Bill for a situation where there can be an assessment by the health board and by the court of the failure of the parents. We are not providing for any situation where there can be self-assessment by the parents of their lack of basic capacity to parent their child and their desire to substitute better parents and to facilitate that process and allow it to happen.
That is an important issue which should be considered. As the Minister said, it is a standard approach in other countries. Married parents can decide that they cannot bring up their own child and that they wish the child to be adopted. We have constitutional constraints but we have the same human problems between parents and children. There is nothing about the Irish weather or the Irish sky that makes us unique. We need to look very carefully at the problem and examine it as a genuine problem and see whether it is, in fact, possible to devise a formula. It is something we should come back to on Report Stage.