We have discussed this issue to some degree. A question has arisen in the context of an amendment as to whether two years is a sufficiently long period for a surrogate mother to have been habitually and lawfully resident in the State. For the many reasons I have rehearsed, that it is not sufficient.
Health (Assisted Human Reproduction) Bill 2022: Committee Stage (Resumed) and Remaining Stages
SECTION 51
Question proposed: "That section 51 stand part of the Bill."
Question put and declared carried.
SECTION 52
I move amendment No. 10:
In page 57, between lines 36 and 37, to insert the following:
"(5) The surrogate mother only should be allowed decide on any reduction of embryos and must not be obliged by the commissioning adults or their agents to undergo an abortion.".
Amendment put and declared lost.
I move amendment No. 11:
In page 57, between lines 36 and 37, to insert the following:
"(5) Any surrogate parent shall be required to sign a declaration demonstrating they understand the risks and effects of their decision.".
Amendment put and declared lost.
I move amendment No. 12:
In page 57, between lines 36 and 37, to insert the following:
"(5) No single man shall be allowed to undertake surrogacy.".
Amendment put and declared lost.
I move amendment No. 13:
In page 57, between lines 36 and 37, to insert the following:
"(5) Life assurance must be provided to both the surrogate mother and the child by the commissioning parent. The commissioning parent is also required to list new guardians for their surrogate children in the event of their death.".
Amendment put and declared lost.
I move amendment No. 14:
In page 57, between lines 36 and 37, to insert the following:
"(5) Only green listed countries listed by the OECD and the DAC may be approved for international surrogacy arrangements covered by this legislation.".
Amendment put and declared lost.
I move amendment No. 15:
In page 57, between lines 36 and 37, to insert the following:
"(5) (a) No one who was convicted of a child sexual offence either in or outside the State shall be allowed to participate in or avail of surrogacy services.
(b) No one who has engaged in a criminal offence against a surrogate mother shall be allowed to participate in or avail of a surrogacy service.".
Amendment put.
Vótáil.
Will the Senators claiming a division please rise?
Senators Sharon Keogan and Rónán Mullen rose.
As fewer than five Members have risen, I declare the amendment lost. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Official Report and the Journal of the Proceedings of the Seanad.
Amendment declared lost.
I welcome to the Distinguished Visitors Gallery Senator Mary Seery Kearney’s goddaughter, Amy Kearney, who is back again. I also welcome the Senator’s parents, Pat Seery and Patsy Maheady Seery, and other members of her family, including her daughter, Scarlett Seery Kearney, and her sister, Michelle Kearney and sister-in-law, Rosemary Kearney. They are all incredibly welcome.
Question, "That section 52 stand part of the Bill", put and declared carried.
SECTION 53
Question proposed: "That section 53 stand part of the Bill."
This is my first engagement with the Minister since The Irish Times reported us as having trading insults in this House. For the sake of any youth looking in, we should both agree that neither of us was insulting each other personally, even if we have been somewhat insulting of each other’s political point of view. In that regard, I commend the Minister on his tie today.
Section 53(3) provides that each of the parties in the case of two intending parents understand that, "should the agreement be approved under this section but he or she dies before the embryo transfer concerned has been effected, such approval will be treated as revoked from and including the date of death". Could it be, in the Minister’s understanding, that an embryo might have been created but not transferred to the womb of the surrogate mother and, in that circumstance, there is a created embryo in being but no longer a surrogacy agreement? Is that what I should take from that? These are difficult issues to imagine in the abstract but I want to ask the Minister that. If he does not mind spelling it out, what is implication of that in practice?
We have not been speaking to any of the sections, so I will need time to read the section and respond. We have just been going amendment by amendment. We will have to take this slowly, read the amendments, get the detailed notes and respond, if that is okay with everybody.
Yes but we are at the point now of agreeing the section.
I understand. In respect of specific questions on the individual sections, I want to make sure we give the Senator-----
It is the previous section, which is gone, so there will be no more amendments in it.
I understand. The Senator is asking a question about the section, which he is perfectly entitled to do.
Before we move on from that section, I wish to ask the Minister about it. This is our last chance to ask him about it.
I fully accept that. I am not questioning that whatsoever. We have very clear speaking notes, amendment by amendment, which allow me to respond very quickly. The Senator is asking a question about the section. I want to make sure I give him a correct answer. Therefore, I will have to take a moment to read the section.
By all means.
I propose that the Minister be given a couple minutes to read the-----
I do not mean that we should suspend. I think we need to keep going. I want to make sure I have an answer.
The only way to keep going is to put the question on section 53 to the House.
But I have a question and I need an answer.
Perhaps if a Member keeps talking while the Minister is reading, could that-----
If it works for the Senator, I can ask the Department to come back to him with a detailed note, if we want to keep moving through the sections. Alternatively, I am more than happy to endeavour to answer the question now. Whatever works-----
I realise this is very difficult and the Bill runs to almost 200 pages. This is why we really should have a separate Report Stage. If the Minister were to come back with something on this that would make me want to table a specific amendment on Report Stage, by passing such an amendment now, we are not likely to get to a Report Stage or certainly will not be in a position to table an amendment.
To be of assistance to the Minister, I am happy to spell out my concern. I apologise if I imagine things wrongly. I understand the purpose of this is that if one of the intending parents dies, or the intending parent in the case of a single person being permitted to have a surrogacy, there is no surrogacy arrangement any more. I do not know how all this works in practice. Am I correct in thinking that means there could be a time lag between the time when the embryo is brought into being and the time when it is implanted into the surrogate mother? If within that time period one of the intending parents were to die, what would then happen to the embryo? I suspect it is a real-world question unless the embryo transfer is immediately upon the creation of the human embryo, in which case it is not realistic to posit that there could be a moment in between the creation of the embryo and its transfer when the person dies. That is where I am dependent on those who know more than I do to tell me what the real-world effect of this amendment would be.
I also realise that in the case of a single intending parent, there is nobody to take responsibility for that embryo at the end of the pregnancy. If there are two intending parents, one could take responsibility at the end of the pregnancy. I would appreciate assistance on that question.
I think there are two different questions here. One relates to embryos that are created and the second deals with the case of posthumous donor assisted human reproduction where one of the intending parents dies. On the first, any embryos created would be treated in exactly the same way they are now and have been for many years. There are embryos created through IVF and through existing surrogacy arrangements; the same situation would apply.
If, for example, a couple are availing of IVF, embryos have been created and one of the intending parents passes away, it would be possible for the surviving partner to avail of surrogacy and to proceed as a single intending parent. If it was a woman, the woman could potentially use the embryo to attempt to become pregnant herself. If it is a man and if there is a genetic link to the embryo, he could apply as a single intending parent for surrogacy.
What would happen if the person who supplies the single genetic link dies after the embryo has been created? If a surrogacy arrangement has been made and the embryo has been created in the case of, let us say, a single intending parent who was obviously by definition the genetic parent of that child, what happens to the embryo in that situation?
It depends. In the case of a man and a woman, if the embryo has a genetic link to the man and the man dies and if there is a posthumous agreement in place going into IVF, it is their choice to decide what they want to do in the case of one of them passing away. If they do sign something authorising their partner to continue with assisted human reproduction in the case of their death, if it is a woman, she can use the embryo herself to attempt to become pregnant. If that does not work, she can try to avail of surrogacy. For the man, if he has a genetic link to the embryo, which he may or may not have, he can apply using that embryo through surrogacy as a single intending parent.
If he does not, he is the one who dies and he is the single intending parent, what happens to the embryo?
Is the Senator asking what happens if he is the one who dies?
If he is a single intending parent, it is his genetic child and the embryo is created, what happens if he dies? If a single male intending parent provides a genetic-----
It is a man, donor assisted,-----
He engages in a surrogacy-----
-----with no other partner involved and he dies.
What happens to the embryo?
The embryo would be disposed of in the same way that they are through IVF surrogacy now and have been for many years.
Question put and declared carried.
SECTION 54
Question proposed: "That section 54 stand part of the Bill."
This is the section of the Bill that covers the safety of children. It states that: "The AHRRA shall not approve... unless it is satisfied... that the relevant person, and each other relevant person, does not present a potential significant risk of harm or neglect". This to some degree connects back to the amendment proposed by Senator Keogan and me that would have provided that:
(a) No one who was convicted of a child sexual offence either in or outside the State shall be allowed to participate in or avail of surrogacy services.
(b) No one who has engaged in a criminal offence against a surrogate mother...
We are talking here about the suitability of independent parents and the safety of children. One of the concerns I have here is that this provides that it is based on the information available to the AHRRA that it must be satisfied that there is not a potential significant risk of neglect inter alia to the child involved or to any other child. What constitutes the information available to the AHRRA?
Section 54(2) states that the AHRRA "shall ... make a request in writing to each relevant person to complete and submit to the AHRRA within the period specified in the request... an assessment in the specified form". I note the language that it "shall ... make a request". Does that mean that if that request is not complied with, there will be no surrogacy agreement? In other words, is it a necessary, though not sufficient, condition for there being a surrogacy agreement that that request in writing be complied with for each relevant person? Presumably that includes the intending parents.
Is it on the basis of the reply to that request that the AHRRA has the necessary information on which to determine that the relevant person does not present a significant risk?
I thank the Senator for his questions. As he has read out, the regulatory authority will have very broad powers in determining the appropriateness of the applicants for surrogacy.
As was absolutely clear through the draft legislation, it is the safety of the child which comes first and foremost. I have been told that there is a misunderstanding circulating on social media, for example, around the amendment Senator Keogan put forward in good faith seeking safeguards and that this has been interpreted incorrectly as suggesting that these powers do not exist. I want everyone to be absolutely clear that the regulatory authority has the powers to cover the eventuality in Senator Keogan's amendment, and has far more powers.
The reason for not agreeing to the Senator's amendment on one specific issue is that there is a wide variety of issues going far beyond that heinous one which is covered in the Senator's amendment. I want to assure anyone watching in who is interested in these proceedings that the eventuality and the protection sought in Senator Keogan's amendment is fully covered in the Bill, and far more is covered. I know the Senator tabled the amendment in good faith because it was one area that she was looking to have included.
To the questions raised by the Senator, the assisted human reproduction regulatory authority, AHRRA, has very sweeping powers and the Minister also has very broad powers in setting the regulations and the requirements needed. AHRRA and the Minister of the day and their Department will be working very closely together to ensure that any of the documentation which is required must be submitted to the satisfaction of the regulatory authority.
To Senator Mullen's question on whether the failure to comply with all requests for information would automatically exclude one, AHRRA has broad powers to implement that if it wishes, if it was a very trivial piece of documentation that was being requested and perhaps if the applicant was not able to avail of it, whatever it may be. If it was a trivial piece of documentation, AHRRA has the authority to proceed with the application. The regulatory authority will be taking its responsibility in the safety of the child and of the surrogate absolutely seriously. As the House will see from this section, it is drafted to put the safety of the child front and centre. If the regulatory authority has any concerns about the suitability of any applicant, it has complete powers to refuse that application, be it on the questions Senator Mullen has put forward on returning requested documentation or, indeed, a broad range of others, whether it is to do with the requested documentation or not. For example, every applicant must go through counselling. If AHRRA was of the view that the counselling and the counsellor had signalled that the person may have no previous offences, the person may have committed no previous crimes or the person would pass various things but if, through the counselling, the regulatory authority is concerned about the suitability, then it can invoke that, and indeed other powers as well.
I thank the Minister very much. I know from Committee Stage in the Dáil that he went through a great and extensive explanation of the screening of anybody who applies for fertility and not just surrogacy. As I said last week, I had a problem where if suddenly one has a diagnosis of something which is going to bring a person into a territory of requiring fertility treatment, and then having to prove oneself as a parent, when that is not the case when one does not have a fertility issue. I would argue that it is discriminatory. If one is in a situation where one has a fertility issue, one does not have a disability, although, technically if one's uterus is not working, there is an organ of one's body which is not working. However, because it can be rectified or mitigated through fertility treatment, it does not qualify as a disability. We have, therefore, made moves on leave to assist people as they go through those fertility treatments.
My point would be that we get no credit except we have to suddenly prove that we will be good parents. During the course of the proceedings of the Committee on International Surrogacy, Ciara Merrigan very powerfully shared that parents through surrogacy go to great extents to prove that they have to be best in class to somehow justify their position. This is also incorrect and wrong that that should happen.
The Minister has given a very thorough explanation of the process and the sheer powers of the regulatory authority. I note that the Minister will have the discretion to extend those powers and, by delegated legislation, be able to ensure that whatever arises can be responded to. It is not just strict in its provision but is elastic to be able to respond to what may arise in the future which I appreciate, despite my little objection.
I completely understand the amendment brought forward by Senator Keogan who has the experience of being a foster mother to so many children and knowing their stories and why she would be particularly sensitive. I really understand that. I would respect that were it not for the line in her tweet about it, which reads:
It is my belief that not every person has the right to be a parent. The prohibition against individuals convicted of child sexual offenses participating in or availing of #surrogacy services is a crucial safeguard to protect the interests and well-being of children born through #surrogacy. I will be putting this to a vote on Wednesday. Please contact your #SENATORs.
These are the two crucial lines: "I can't believe something like this needs lobbying. Ireland gets sicker by the day under this government."
The unfortunate piece here is that the Minister's extensive explanation and my position on this extensive screening will not be tweeted and will not be put out on a reel on social media. Those explanations will not be but misinformation that the Government has not considered it and rejected their amendment will be. That is the piece that will go out. The fact that it is a lie is irrelevant.
In defence of Irish Families Through Surrogacy, no one wants someone with a sexual offence conviction to be in surrogacy or, in actual fact, in any parenting role. Where is the raft of Private Members' Bills prohibiting anyone with a sexual conviction ever seeing their own children again, or ever procreating another child again? Where is the raft of that legislation, if that is the case? We would not not even dream of it.
I ask the Senator to keep to the section, please.
It is relevant to the section.
The fact of the matter is that there are enormous safeguards here. It does not stop the lies being told but there are enormous safeguards here and that needs to be underlined and highlighted. There is misinformation and disinformation going out from this House. It is not reasonable and it needs to be challenged.
I thank the Senator. Senator Keogan has indicated. I will then call Senators Clifford Lee and Mullen.
I thank the Minister for explaining this section to me but it certainly does not give me any great comfort. Yes, I did put out a tweet on my amendment, which was voted down today. It was one which was put down in good faith because I do not believe that AHRRA will do due diligence in respect of safeguarding potential children born through surrogacy. It states: "...shall not approve under section 53 a surrogacy agreement unless it is satisfied, based on the information available...".
The Minister said that this regulatory body will have powers. I would like it if he could outline those powers. What are those powers to ensure the information to protect against people who are child sex offenders from becoming surrogate parents?
What information will AHRRA have in that regard? If such individuals do not make it available to AHRRA, how can we protect children?
At this stage, I should not be naive, but in my naivety I was going to ask our colleagues to amend their social media accounts to reflect the position that any misapprehension or misunderstanding had been cleared up, but I know that is not going to happen. Of course the regulatory authority is going to check the sex offender register. Any suggestion that it will not or that it will just casually look over something is completely erroneous and is insulting to the people who will work in it. Everybody wants to safeguard children, and there are many instances in this country of safeguarding of children and other vulnerable people that go completely unspoken about in this House. To suggest that children are just going to be born and thrown to the wolves is completely erroneous. Our colleagues know this and are basically spreading lies about it. There are enough protections in the Bill, on which we have all worked very hard. Many of us have been involved over the years in many matters supporting people whose rights have been infringed, children whose identities have been stolen, people who have been subject to illegal adoptions and children who were trafficked out of this country. We have all worked with those people, but some voices have been notably absent in those struggles through the years. I really hope the truth can come out of this debate. It is completely offensive and incorrect to suggest otherwise.
As I was listening to Senator Seery Kearney, I wondered whether Tusla has an unblemished record when it comes to the vindication of children’s welfare and safety. That is a helpful question to ask, because in the view of many people, it does not. There are failures, and when we ask ourselves why there are failures, whether it is down to bad actors, the incompetence of the system or human resource problems, the answer is that it might be down to human resource problems, challenges within bureaucracy or whatever but it is not our purpose here today to examine whether there are bad actors within Tusla. I do not have any evidence to tell me there are, but nobody would be in any doubt that there are failures in the way we protect children in this country, such as in the case of children who go missing in the care of the State or children, as Senator Keogan reminds me, fostered out by Tusla who have been abused by those to whom they were fostered out, and so on.
That is the reason, to anyone who wonders why we raise these concerns, that we are seeking to tease out and explore how strong these protections are. That needs to be said. There was no excuse not to accept the amendment that would have disbarred anybody with a conviction in the area of child sexual abuse. For the avoidance of doubt, it could have been made clear, without prejudice to any other powers to look into any other issues that are being entrusted to the regulatory body here. There is no good faith reason not to accept that amendment that was posed, from which we have moved on.
My friend and colleague Senator Seery Kearney wants the exact same attitude to be taken to intending parents of children to be brought into the world through surrogacy as would be taken where children are brought into the world when adults do what comes naturally. The reason for her philosophical-ideological view of that is grounded, as is that of the Government, in the idea that since a genetic link is required of at least one intending parent in the context of a surrogacy agreement, there is no right to inquire further into the extent to which regulations are involved. This was very clear when Senator Seery Kearney talked about intending parents having to meet a bar. If we were talking about adoption law and rules for adoption, we would not object to asking people to meet a bar.
That is why we have to ask a follow-up question. All citizens, legislators, Ministers and civil servants have to ask it, of themselves if not to address it in public. When and to what extent is it reasonable and necessary to insist on due diligence when it comes to bringing children into the world? We are talking about using the resources and law of the State to enable people to do something they are not able to do on their own, in the way that happens when men and women have children in the natural way. This legislation brings the State in aid of people who want to bring about a certain result, and the question is what the State can ask for in exchange in the form of the precautions and safeguards it requires. I ask Senators to think about the well-heeled 21-year-old male who wants to bring a child into the world using a surrogate mother from a financially disadvantaged background in Ireland or elsewhere. Are we really saying that because that male will have a genetic link to the child he wants to bring into the world, it is rather cheeky of us to be too intrusive about the standards we want to apply or the precautions we want to put in place? There ought to be, for the avoidance of doubt, a clear provision that nobody with a history of sexual abuse can even get to the door with an application.
In addition to that, and this is the reason for my putting the questions on the section to the Minister, I think he said that where the regulator has the right and, indeed, the duty to request the completion and submission of the specified form, it is not a legal barrier to the further consideration of that request if the intending parents do not comply. No matter how much we are told about how diligent the regulator will be, I do not see that there will be an obligation on the regulator in law not to proceed if it does not get a reply to the request it makes, and I would be grateful for the Minister's clarification on that. I hear him saying the regulator will be diligent, but what if it is not? What if there is a vested interest somewhere or some kind of corruption of the process? Will the regulator break the law if it proceeds with the permission of surrogacy notwithstanding that it has not received a response to the request? I would be grateful for an answer on that, the first question I ask of the Minister in good faith.
Second, I note what he said about how, where the Minister of the day makes regulations, he or she will have to have regard to the paramountcy of the safety of the child in any regulations being made, but that does not dispose of all the issues. I am raising the question of cases where the regulator does not do its job.
He also mentioned the requirements for counselling. Is that set out in law in this Bill? I am not saying it is not but I was wading through my papers and I would again be grateful if the Minister could draw my attention to the precise section.
Does he take the point, or am I wrong, that under the Bill, the regulator could legally proceed with the approval of a surrogacy agreement even if it had been refused a reply to the section 54 request in writing?
We are talking about the safety of children, so let us remember the name of the heading of this section: "Safety of children". We are talking about the regulatory authority's oversight of any proposed surrogacy journeys. No embryo has been created at this stage. Nothing like that has happened at this stage when this level of screening of proposed parents occurs. So, it happens. I am not objecting to the section. I am not saying anything other than to note that just because you have a fertility issue should not put all your character and everything about you up for grabs and having to be proven, as the AHRRA will require. At no point have I objected to this, the officials will confirm. I have asked why we are doing this and the answer I got was that it is best international practice. I have completely and utterly accepted this. However, I am noting that infertility suddenly puts you in a place where you have to justify who you are and what you are and your capability to be a parent, just because the natural functioning does not happen, whereas we have thousands of families giving birth to children where they are not in that place of wanting to give as much and to be as much, but that is a whole other day's question.
The example given by Senator Mullen tells us everything about the intent here. He mentioned the well-heeled, single male. That goes to the actual philosophical objections going on here. The philosophical objection is about same-sex male couples and gay men availing of surrogacy. It goes back to this. During the marriage equality referendum, the posters around Dublin were warning that this was going to lead us down the road of surrogacy. There were obscene posters saying there would be children who did not have mothers. Actually, they have two fathers who are fantastic and love and cherish their children just as much. The Senator's real objection is about single males accessing the service. He makes the broad characterisation that anybody who becomes a surrogate is poor and needs him to stand up and support them. The inaccuracy of this broad characterisation that every surrogate is a poor woman is absolutely and utterly shocking. Not only that, even if some women are poor, that is to presume that poverty denies you the ability to have any agency or any decision making over your body, that being in a poor position suddenly means such people do not have a say. It is a stereotype of ignorance and being easily persuadable. It is a stereotype of women who may experience poverty, but that is not the surrogacy and surrogate mother experience.
I reject this characterisation of surrogates, of intending parents and, consequently, the arising stigma for the children born of those arrangements. How dare they? We had this debate last week. Men are very capable of being fantastic parents all by themselves. They have the same inherent desire to be a parent, to procreate and to have a child and to love, cherish and treasure that child. That is what is going to the heart of this. I reject the characterisation of me. That is all absolute rubbish: infuriating rubbish, but rubbish nonetheless. It is playing the man and not the ball, which is what is going on a lot of the time with Senator Mullen. There are extensive powers under this legislation. The safety of children is front and centre all of the time, just as it is with intending parents.
I did not intend to speak today, but listening to some of the comments has raised new queries for me that are related to the section, notwithstanding the piece around ensuring no one is on the sexual offences register, which to me seems obvious. I am concerned, regarding how the section is worded, where that leads if we are looking at what the regulatory authority actually looks at. Is it looking at the sex offenders register alone or is it actually using Garda vetting, which then places offences into different categories? This will then capture people in the same category as those who have committed a sexual offence but who will not have actually committed a sexual offence. For example, in the Garda vetting piece, someone who has been caught in possession of a small amount of drugs is in the same category as someone who has committed a violent sexual crime. Regarding this section, have we taken into account that nobody else with convictions in the general sense will be caught up in that process when it is taking place? There is an argument that poor women cannot make decisions about their own bodies. I spoke a lot about this on the surrogacy committee at the time in relation to agency and autonomy. Just because you are poor does not mean you are not smart and cannot make good decisions or give to the world in a particular way. The arguments are not being made in the Chamber about how poor women are to access surrogacy, because they have fertility issues as well. How do poor families, poor couples and people who have convictions because of poverty ensure they can access surrogacy and not get caught up in a system where they cannot do so and get support from the State? I do not know if the Minister can comment on it, but I want to make sure that section the Minister says captures the concern does not accidentally capture a load of other things in this tight regulation that actually then excludes a load of people from accessing surrogacy in the first place. I would love to have that on the record.
To pick up on a point Senator Seery Kearney made about a bar that has to be reached and it being something we should somehow just expect, women who have gone through surrogacy and who have experienced poverty are judged, as are men and families. Traveller families have been judged. Disabled women and men have been judged about how they parent. The bar then being set, if you are also infertile, of having to be able prove you can be a parent is a bar no normal person ever has to meet. Discussing this bar is important. It is not saying the discussion should not happen, but being able to recognise that, for some people to have to prove themselves beyond all ability that anyone else would ever have to prove themselves, and that is not only those who will access surrogacy or IVF treatment but is also other people, it is not okay to expect people to be non-human. It is okay to be human, flawed, to parent wrong and to make mistakes. Sometimes it is okay to have a criminal conviction. Sometimes you might be in recovery from addiction. There are a multitude of things, and I do not want for that multitude of things that are okay when it comes to being a mother or a father with that multitude of complexities to then ostracise people from the surrogacy conversation because they are not allowed be those human things and make those human mistakes throughout their lives or that they have to be some superhuman form of a parent that actually does not exist in the main population in the first place. The two things are connected and it is to make sure that section does not push out people who have other convictions and that we are very explicit, when we talk about the regulatory body, that we are only talking about sexual offences and we are not talking about other things that may remove people from the surrogacy process.
I welcome the guests of Senator Garret Ahearn, the group of 14 from India, from the Federation of Rajasthan, Trade and Industry who are in Ireland for a couple of days, visiting and sightseeing but also seeing some of our parliamentary systems. I wish them a marvellous visit. They are most welcome to the Chamber and to the Upper House.
My apologies that I missed the start of the debate. Forgive me if some of the issues I raise have already been flagged. I want to push back a little on the language we have heard already today. I have a concern that those who often champion our position and use the language about the safety of children have an underlying ideological agenda. Senator Seery Kearney has already clearly articulated that point. It is a ruse. It is well established in terms of our evidence around child well-being and safeguarding. We know who the potential threats to children are. They are often intimate family members, particularly men, who can neglect or abuse, disregard or use various forms of exploitation. We need to be clear on where the evidence is about who present risks to children.
In the debate, trying to follow some of the logic, it almost feels as though there is a prescriptive approach to who should or should not be parents. To follow that logic beyond those who are seeking surrogacy support through the State, then we apply that to everybody. Does that become forced reversible sterilisation, for men in particular, until they pass a test that allows them to become parents? I do not think this Republic should be an advocate of Gilead. I would push back against that language and such terminology.
I am a queer person. I am a gay man. I often thought about becoming a parent but I am safely of an age where I am the back up should anything happen to my siblings. I joke with them that there are certain favourite kids I would take and others I would not. I am there as the backup, that is the role. Other LGBT people wish to be parents. I commend the Government on bringing this forward. This is a landmark day. The Bill before us has been more than 20 years in the making. It will be great when we get to the point when it is, hopefully, passed.
As the Minister knows, members of the LGBT community, while grateful for the progress, still have some concerns about the legislation. It makes huge improvements in the recognition of LGBT parents but there is still a bit to go. The Minister has committed to additional legislation. Perhaps we will be able to resolve some of those challenges then.
The particular point that has been raised with me and which I want to flag, if it has not already been flagged, concerns donor-conceived children who are born abroad. It is disappointing that the parents of a child born in Dublin can be jointly recognised but if-----
That is covered in a different section which we will come to.
I will wind up my remarks and come back in later.
I am in no way playing the person rather than the ball. Senator Seery Kearney knows that I am sincere in my convictions around this issue. I speak for many people when I say that a child is entitled to be brought into the world by a father and a mother and where possible, by his or her own father and mother. It is not me, it is the Government, supported by Senator Seery Kearney, that is advancing big social change with this legislation. It is taking the novel step. It cannot whinge if people such as myself and Senator Keogan who have well-founded, evidence-based, authentic human rights concerns about the impact of this on surrogate women who are generally financially disadvantaged, and on children for whom certain rights are being deliberately, intentionally denied them, forever, under the processes here into which the State is putting its resources and energy, express them. Therefore, when I say, “What about the single, well-heeled male?” I am not talking about the same-sex couple. It is disingenuous to say that I am. Although I have always said that I include such couples, and in light of what I just said, I have an issue with access to surrogacy by same-sex couples. That is because it breaks what I believe is one of the golden rules, which is not to intentionally deprive a child of his or her own father or mother. Of course I have an issue with that. However, the issue I raise is at the even more extreme end, which is that this legislation contemplates that a single man, and I do not say a single woman because there is a public instinct that is well founded that it is even more inappropriate for a single man, as young as 21, to be able to commission a child who will not have a mother in his or her life. We are being told about all the safeguards. However, what we are being told is basically “trust us, the regulator will be robust”.
At the very least it should be a requirement that there will not be any sexual abuse history or that the person is not on the sex offenders’ register, for the avoidance of doubt. Unless simply relying on the strength of numbers, when trying to advance social change the Government should include that in a way that is without prejudice to other issues, that the regulator might also look into. If it really cared about public perception of the possible dangers and downsides here, the Government would have embraced that and made its own amendment of it. The reason it did not is because it is going for a complete, rights-based approach that does not want any suggestion that there might be anything inappropriate, ever, about a person wanting to access surrogacy for his or her own aspirations to parenthood. There is a world of difference between this and Senator O’Hara’s frankly fatuous invocation of the concept of sterilisation. There are millions of situations where things happen naturally that one might prefer did not happen. For example, a rapist might conceive or through a relationship with a person of the opposite sex bring a child into the world consensually. Is that desirable? I think not. Once the child is conceived, that child has a right to life, in my view, and I hope you share that point of view. When it comes to calling the State to support the process where a rapist who cannot manage to bring a child into the world consensually, has the State any interest in saying “No, we are not going to help you, because we have a possible concern”?
I am simply trying to illustrate the obvious point that there is a difference between what happens naturally and which cannot and should not be interfered with, and the State, when in a position to offer or withhold help through its administrative systems or resources, is perfectly entitled to make and to seek certain calculations about what would be in the best interests of children. That is the point. It is an obvious point.
Is it okay to have a dad who is rapist, because the woman is forced to carry it and bear it-----
That is a separate question.
Oh my God.
I was positing the situation that a convicted rapist might have a consensual relationship that might lead to a child and the mere fact that we do not yet sterilise convicted rapists. It is simply to make what really should be a much more obvious point, that the State has a right to apply certain tests and expect certain standards if its supportive apparatus is being called in aid of situations into which it can otherwise have no control or input. Senator Ruane completely misunderstood the point I was making. Hopefully she will check the record.
I will go back to the question I asked the Minister. Am I correct in reading this section 54(2)(a) that even if the request for the submission of the specified form is not complied with, the regulator would actually have the right in law to proceed nonetheless? There is nothing in this legislation to prevent them from proceeding further with he application, is there?
It is essential to put the child front and centre in this legislation. That is why I put down that amendment. On setting the bar, it is set really high when it comes to fostering, yet there are failures within that system.
Intending foster parents will go through between six and 12 months before being allowed to have a child in their care. I have had many children over the years who came to my house after being mistreated by foster parents they were in care with. That is why I tabled the amendment. It was very specific for child sex offenders. If someone wants to become a foster parent, not only does the intending foster parent have to get Garda clearance but everybody else in the home does. The amendment seeks to ensure the regulatory body conducts due diligence in respect of intending parents. It is about setting the bar high, and I expect it to be set very high. That does not matter. Having seen what I have seen over the years, I do not believe everyone has a right to be a parent. Children are abused and sexually abused from very young ages.
I have had many children in my care, including one of my children's foster son who is gay. The referendum was the first time he voted. He had been with me for four or five years at that stage. He talked about the referendum and voted against at the time. I could not believe he was voting against it. When I asked him why he said he would not have liked to have been in foster care with two gay men. When I asked him why not he said he would never have experienced what mother love felt like. His words to me were "I would never have got to experience what mother love felt like.”
I ask the Senator to speak to the section. We are on section 54.
That is why I included child sexual abuse in that amendment. It is why I would always put the safety of children to the fore when it comes to this legislation.
I will push back on that a little. I appreciate what Senator Keogan said on fostering. However, the reason we have a higher bar for fostering is not just that it involves children but because they are vulnerable children. That is why we do that piece of work. Not every child who is born necessarily becomes vulnerable. Children are born in safe, loving, supportive, caring and nurturing environments, and we want to create more of those. We want to create circumstances in which more and more of our children are in those environments. The reason it happens for foster children is that they are particularly vulnerable. We need to differentiate that and tease that difference out. I appreciate the work Senator Keogan has done. I just wanted to make that point.
Many different issues have been raised and I will endeavour to go through them. I will start by making a point on some of the comments made around the rights or suitability of two men or two women to raise a child. People have their own view and I will not try to dissuade anyone of their views; they are what they are. I will say in a personal capacity and as Minister for Health and a member of this Government that the Government fully believes that one parent or two parents – be they two men, two women or a man and a woman – will always do their very best. Some of us as parents will do well. We all struggle as parents on a weekly basis. I see no reason that two men or two women would struggle any more or less than a man and a woman. I think it comes down to the individual. I am not getting into a debate about right and wrong. That is my deeply held view.
I have a concern in this debate, which has been articulated by various Senators, that what comes out of this may be misrepresented. Senator Seery Kearney read into the record Senator Keogan’s public statement that this country gets sicker by the day. That does not reflect the reasoned and evidence-based debate we had in this Chamber last week and that we are having now. I respectfully suggest that it looks to people that what Senator Keogan is trying to do in making an emotive, powerful statement like that is suggest that somehow we are suggesting that because we are not agreeing with her amendment, we think people who are guilty of child sexual abuse could ever avail of surrogacy. That is what it looks like, and I ask Senators to consider that if they make those kind of statements after today's session in the Seanad. I am telling them now, as I told them last week, categorically, nobody guilty of child sexual offences will ever be considered suitable for a surrogacy. There is not a single case in which that could ever happen.
Senator Mullen asked why we would not accept the amendment anyway as an additional safeguard because there is no downside. However, I put it to him that there is a downside. I referenced this last week. Imagine someone who is guilty of rape, possession and dissemination of child pornography or a long history of domestic abuse or violent assault but is not guilty of child sexual abuse. Imagine someone like that, who clearly could pose a danger to a child, applies and says to the regulatory authority and judge that only one offence has been referenced in this legislation and they are not guilty of that offence. Because the person is not guilty of that offence, which is the only offence referenced, clearly that is the only offence that is an absolute bar. I guarantee that people would apply and put that argument to the courts and the regulatory authority. What of people guilty of murder? What of people guilty of rape and sexual assault? What of people guilty of possession and dissemination of child pornography? They will never get through a surrogacy application. The reason is that we have given the regulatory authority very broad powers and specified that the Minister of the day, in specifying the regulations and the information required, cannot just decide it will be X, Y or Z and none of the important stuff.
Section 54(2)(c)(i) states that in determining the information to be specified – this is the Minister – the paramount consideration is the safety of the child. The Minister is legally obliged to set the criteria in accordance with this, and additional safeguards as well. I said it before but based on the conversation we just had, I want to say it again, and categorically. Nobody who would be covered under the Senator’s proposed amendment would ever get through the door of the regulatory authority. The reason we are not adding in a list, either the Senator’s list or others that we could add as well, is that we need to keep the ability available to the regulatory authority to decide it does not care whether it is X, Y or Z, the regulatory authority is not satisfied that a child will necessarily be safe and will not pass the assessment. It could be for a broad range of reasons. It is to ensure the best possible protection for the safety of the child.
The Senator will do whatever she wants to do. It is disappointing to hear that she made that public statement afterwards. I do not believe that characterises the position and it is entirely contrary to the explanation I gave her, and am giving to her again. I ask her to reflect on whether that is a helpful characterisation. I certainly disagree with it for all of the legal reasons I put forward. There is not an ethical piece here; this is a matter of law.
Due diligence is part of the Bill. That was asked.
Much of what is in this Bill is based on adoption law and regulations and the background checks in adoption.
There was a question on refusal to comply with the information. Refusal to comply with the information constitutes a barrier to completing a safety assessment of the child. If the regulatory authority cannot complete a safety assessment of the child, it cannot and would not grant an order.
Is that in the Bill?
Senator Ruane made the point that there may be people who are carrying offences, such as a minor drugs possession charge from years ago. She made the point that there could be prejudicial assessment against people from lower-income families or communities. That is exactly why we are giving the regulatory authority the powers to assess on a case-by-case basis but they are assessing based on criteria specified in law, in statutory instrument by the Minister, and the Minister must make those regulations in accordance with the paramount consideration being the safety of the child. Therefore there are layers of protections in place and I believe they are in place regardless of household income.
Senator Ruane also made a very fair point around access to fertility. There has been a lot of talk around surrogacy being provided in lower-income countries. Senator Ruane flipped that on its head and asked about lower-income men or women who want to avail of surrogacy or other fertility. Senator Ruane is no longer present but the entire direction of travel in fertility services being rolled out by the Government is to make them affordable to everybody. It is why I have rolled out State-funded IVF for the first time. Through this Bill, we will be able to expand that IVF to donor-assisted IVF which, in the main, will help same-sex female couples but also male-female couples too. It is why we have massively expanded access to GP services which is the first port of call for anybody with fertility questions. It is why we have set up six regional fertility clinics around the country which are completely free for every person in this country to use. In the lifetime of this Government we have created three tiers of fertility services, most of which are completely free for everybody and all of which are completely free for lower-income households.
Senator O'Hara asked a question and I will ask the Chair’s indulgence for two seconds in case we do not get back to this. I was talking to some parents about the Bill just last night. They have a very real concern and I would ask that the Chair indulge me for just one minute. The question was asked as to whether, if the parents had their child through surrogacy outside Ireland, the child will be able to avail of Irish citizenship. The answer is “Yes” but not in the drafting of this Bill. We got a very clear position from the initial drafter saying it was not possible. The Minister for Justice, Deputy McEntee, and I have pushed back very hard on that and we have said that if someone’s parent is Irish, whether the child has been born in Canada, England, Australia, Nairobi or wherever, whatever rules apply if the parent gave birth to the child themselves or fathered that child, whether it is a heterosexual couple or otherwise, we will make sure that whatever rights would apply to that child in terms of citizenship will also apply in that case. It is an undertaking that I am very happy to give publicly here. It is in the amending legislation. It has taken a lot of work legally to get us all around to a point where we have been able to achieve this but I believe it is absolutely essential. That is being drafted right now.
I thank the Acting Chair for his indulgence.
The Minister spoke about how it would be great if we could all reflect. That is why we should not be rushing Committee and Report Stages together so that we could actually reflect on what each other is saying. However, I must say the Minister’s logic does not stand up as to his reason for not accepting that earlier amendment about the sex abuser. In absolutely no way did the amendment’s wording exclude the possibility of the regulator having regard to other welfare conditions. There are any number of ways in which this could be worded but without prejudice for any other welfare issues to be taken into consideration by the regulator, a person convicted of an indictable offence in relation to a personal crime shall not be able to avail. I can assure the Minister, even on the basis of my short career practising law, the Minister is not on correct legal ground there. To be specific would in no way exclude the general, provided it is worded correctly. A provision stating that without prejudice to other welfare considerations, it shall not be possible for somebody convicted, etc., would leave the regulator completely clear to take any other issue into account of the kind the Minister described, such as the person accessing child porn or whatever examples the Minister gave. Can I assure him on that point, that the Minister could indeed have taken this amendment without in any way weakening the ability of the regulator to take other aspects of past history, involving convictions or otherwise, into account.
The whole approach here is to say “Trust the regulator”. The Minister gives absolute guarantees but it is not there in the Bill. He says it will never, ever happen. I have no doubt that the Minister would never want it to happen; nobody here in this room would want a convicted sex abuser or someone convicted of violence generally to be enabled and we would hope that the regulator would ask all the hard questions and that it might exclude accordingly but it is not enough to state one should not worry as the regulator will do so because we have given it all the powers in the world to do so. The Minister has enabled but he has not required. He says, and indeed I quoted it myself, that the paramouncy principle would be there and the Minister would have to have regard to that in making regulations. That still does not tell us about the facts on the ground when the regulator comes to do its work. That is why more guarantees and more strict requirements directly there in legislation are necessary.
I am taking from what the Minister has said that, in fact, the regulator is legally entitled to disregard the failure to supply a request in writing. Perhaps, one might say, the Minister may make a regulation that will require such a request in writing for a specified form to be supplied before the regulator can proceed further but that is not what is before us today. The Minister leaves it to the regulator to decide everything, to oversee everything and, indeed, to overlook anything and that is not acceptable considering child welfare is what we are talking about here today. I will leave it at that on that point.
I thank the Senator. He is asking a question that I believe is a rhetorical measure, which is asking what if everything fails. We can ask that about anything. We can ask that about anything in our entire State: what if the courts fail; or the roads authority; or the HSE; or the doctors and nurses; or the police; or the Oireachtas. You can ask that about anything – any law or protections in place in our society about anything. As legislators, we empower the courts, State agencies and State authorities to do a job. We legislate and we regulate. That is how the country works. We can ask that about anything but it is something of a strawman. You can ask about any agency being set up for anything. What we can say is we have a clear law. For anyone listening, section 54, on safety of children starts by stating “The AHRRA [the regulatory authority] shall not approve … a surrogacy agreement unless it is satisfied” and it goes on. It does not say that it “may decide not to”.
The law states the regulatory authority "shall not approve the application unless..." and it goes on.
Based on the information available.
However, everything is based on the information available. Decisions cannot be based on information that is not available. Any decisions that any State agency makes, any clinical decision that any doctor makes or any decision that any judge makes on any given day is based on the information available. There is nothing weak in saying it is based on the facts. That is essentially what that means. It goes on to state that not only will the Minister be obliged to list all the documentation required - in answer to the Senator's question, counselling is included - it also goes on to state: "For the purposes of subsection (3), the AHRRA may also have regard to information obtained otherwise than from a relevant person."
Therefore, stating that the regulatory authority shall not approve a surrogacy arrangement unless it is satisfied "that the relevant person, and each other relevant person, does not present a potential significant risk of harm or neglect" is a very high bar, as Senator Seery Kearney pointed out. It is a very high bar that the vast majority of intending parents are not subjected to. It is a very high bar in stipulating that it shall not approve the arrangement unless it is satisfied that those involved do not present a potential risk. It is not an established risk but a "potential risk" of harm or neglect. It is a very high bar. Based on the information available to the authority just means based on the facts and every court in the land bases its judgments on the facts.
I will not come back in again. We have had a useful debate. The issues of child protection are very important and it is very important that we tease them out. I am clearly not going to convince Senator Mullen of anything. I hope Senator Keogan will reflect on the very substantial protections in place, which I know she takes seriously.
This may help what the Minister sees as a straw man to become clearer. There is a time to be specific about requirements and not just to hope for the best. If right now people on the street were asked if a person assaults another person and leaves them unconscious on the street, should it be mandatory that some custodial sentence would be served, everybody would say that is a no-brainer. However, as we know, with the best will in the world, people to whom we entrust certain aspects of the State's business do not reach the standard that now, retrospectively, we say should have been reached. It is the issue everybody is talking about. How did it happened that somebody could commit a serious assault of the kind we are all horrified and transfixed by, yet was not given a custodial sentence? That is why we sometimes need to be specific in law. That is why we need to say that whatever else, a convicted sex abuser shall not be allowed in the door on this issue. It does not in any way fetter the ability of the regulator to have regard to other issues of welfare. That is a completely nonsensical response from the Government.
The issues we have looked at here are too serious. We have spoken at length about the exploitation of women involved in surrogacy and we will undoubtedly return to that. However, here we have been talking about children who are at the receiving end of all of this legislation and more should be done. I do not suggest for a minute that the Minister does not care about the possibility of the wrong people getting access to these services, but I am certainly saying that he is not doing enough to prevent the possibility of that happening.
Question put.
Will the Members claiming a division please rise?
Senators Sharon Keogan and Rónán Mullen rose.
As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
Question declared carried.
SECTION 55
Question, "That section 55 stand part of the Bill", put and declared carried.
SECTION 56
I move amendment No. 16:
In page 61, line 30, to delete “21 years” and substitute “25 years”.
Amendment put and declared lost.
Question proposed: "That section 56 stand part of the Bill."
All of these sections are important and I have a couple of questions for the Minister. This is the section that sets out, in the context of domestic surrogacy, who may be intending parents. The section provides that a surrogacy agreement may be entered into by two intending parents, jointly, or by a single intending parent and that any intending parent shall have attained the age of 21 years before the section 53 application is made. We have already touched on this. It is impossible not to. These issues are all fite fuaite. The issue is whether it is appropriate to allow for there to be a single intending parent and that suffices, and that single intending parent shall have attained the age of 21 years before the section 53 application for the approval of a surrogacy agreement can be made. With all we now know and are learning about, as I briefly mentioned on the last occasion, the maturing of human beings into adulthood, it is not a straightforward matter of once the person turns 18 he or she is an adult and all may be permitted and once the person turns 21 he or she is an adult and all may be permitted. There is a spectrum period of maturing and we know it is different between men and women, or so we are told. None of us here is expert on this issue.
There is, however, a lot said these days about the development of the frontal lobe and all the rest of it. It is not my job to rehearse that, and we do not have the time anyway. However, it seems to be established that it takes men longer to mature than women, for example. The question must therefore be asked why it is that a relatively, perhaps very, well-off 21-year-old male can seek to commission a baby on his own using a surrogate mother who might be a financially disadvantaged woman. Let us say the male in question is from the southside of Dublin and from a well-off background. Subject to the regulator being satisfied there is no risk of potential harm or neglect, it might be possible for a south Dublin man of 21 years to pay a financially challenged woman from, let us say, a disadvantaged area of Dublin - we can also talk about the international surrogacy context where the financial exploitation of women is crystal clear on the basis of international evidence - to carry his baby, perhaps to pay her way through college, and he can then take that baby away from her forever at the conclusion of the arrangement. When you think about it, if it were the baby of her boyfriend, there is no way the 21-year-old male would get sole custody in an Irish court. Look at the double standards massively present there. It is hard to imagine a circumstance where a 21-year-old male, in the context of a dispute over custody, would get sole custody in a court of his genetic child, and yet this legislation proposes that the State smile upon and facilitate the bringing of a child into the world by a man as young as 21 and that that child would be forever sundered from his birth mother, forever sundered from the woman who is the genetic parent of that child. It is, to use language that I think is not overstating the case, bizarre, cruel and perverse.
The second issue that will be of massive concern for many people of goodwill is the idea, and I have sought legal advice and guidance on this, that, as this Bill stands, it allows the possibility that the genetic father of a child could be registered as that child's mother. There is nothing in the Bill to prevent that male genetic parent, including the 21-year-old man from the southside of Dublin that I posited, from being designated as the mother in any parental order or subsequent civil registration. For example, in the case of a male who has availed of the provisions of the Gender Recognition Act, but not necessarily, perhaps, and who has a preferred gender of female, it could arise that a female, having donated her egg for an embryo transfer to a surrogate, could seek to be designated as the father of the child. This is unprecedented in the law. I sought advice from the Office of the Parliamentary Legal Adviser, noting the provisions of the Gender Recognition Act and what the Bill does not say about the Civil Registration Act, and it seems to apply that a person in this situation who would have availed of the provisions of the Gender Recognition Act, though, as I say, it does not necessarily have to be in that case, a biological male who has a gender recognition cert as a female and uses their own sperm, nonetheless, in a gestational surrogacy arrangement, could, after a parental order, be registered as the mother. The OPLA states in its advice that we still have the general odd situation that the surrogate mother may have been registered as the mother, and the Bill does not have a clear provision for re-registration by changing the recorded parents.
I think the possibility of such outcomes is not accidental but is another illustration of the creeping gender agenda which the Government has been pushing for some time. We also see it in parallel in the Government's bizarre and convoluted definition of gender in its controversial hate speech legislation. If there was one thing that was clear from the resounding rejection of the recent family and care referendums, it is that people do not want the idea of mothers and what they represent being disrespected by the Government, and yet the wording of this legislation reveals, to my mind, a sinister disregard for the will of the public around the recognition of the role and importance of mothers in our society.
This is a Bill about which there has been little public discussion. A lot of stuff has been going on over the years behind the scenes. It is a well-prepared and well-crafted Bill in terms of the objectives it seeks to secure, but it passed the Dáil without a single vote being called. On this issue, and there are other issues, as we saw with the recent referendums and as we have seen to some degree with the hate speech legislation, the media has woken up, generally speaking, to the reality that there are real issues of controversy around the definition of gender in the hate speech legislation and the tests to be applied before one could be prosecuted for a criminal offence in that regard. That has led to the Government pulling in its horns on that legislation, at least for the moment, and giving a commitment not to come back without significant changes, if it is to come back at all, or at least that is my understanding. However, on this issue of surrogacy the mainstream media in this country has been the dog that has not barked, and it has largely failed to shine a light on the Government's bizarre, cruel and perverse proposals such as the ones I have just described. The reason for that is simple. It is always easier to focus on real-life human interest stories. We have celebrities who have obtained children through celibacy. Celibacy? Good lord. Surrogacy.
They are allowed have children as well.
This does allow it through celibacy, now that you mention it. We have this bizarre situation where high-profile people have been able and enabled to have children through surrogacy. We have had the stories about wanting to bring them in from Ukraine in the context of the war and so on. All of that is stuff we can readily sympathise with, within the facts as they are. The problem is there are unseen and future victims of all these arrangements. The media, not having done its job in this area, not having challenged the issues, not having teased them out, and not having looked at the issues of controversy, has enabled the Government, with its heavy majority, to cave in to certain special interest groups without having regard to the rights of other people, in this case the financially disadvantaged, the poor women, here and in other countries, who are already being exploited by surrogacy, and without having regard to the children who are being deprived of certain rights in this whole process. It is cynical and reckless that we should be having, with this surrogacy legislation, such a rushed debate about something that is so far-reaching. Let there be no doubt that this legislation does and will enable the exploitation of impoverished women in Ireland and especially in poorer countries abroad, that exploitation being by financially advantaged women and men who want a baby created to their own preference. The fact the Government will use the guillotine in the Seanad today to forge ahead with these controversial and unchallenged proposals, although it could be said they are not controversial in the sense that the debate has not been facilitated and has not taken place, and given the exploitation at the heart of this legislation and given the commodification of children, it is just wrong that the guillotine should be used on this legislation in the way that is happening.
The public should not let the matter rest and people should raise their voices in protest. They should protest first that surrogacy is being enabled at all, given the exploitation of women involved and the deprivation of children's rights at the heart of it. They should protest, second, at the way it is being done, without even basic safeguards being guaranteed, including the one we discussed on an earlier Stage about specifically excluding from the process people with a criminal history in the area of child sexual abuse.
As we look at this section dealing with intending parents, it is not even required by the State that the child would have two parents. It is deliberately foreseen that the child will be deprived automatically. As I said, it happens in life unavoidably, but to deliberately and intentionally deprive a child in advance by enabling surrogacy arrangements to be entered into by single intending parents is wrong. It is wrong to do it when the single intending parent can be as young as 21 when they enter into that agreement. It is wrong to do it in a way that would allow the genetic father of the child to present to the world and indeed be registered as the mother and the genetic mother to be registered as the father, as I understand is the legal possibility under this legislation and is certainly not prevented by it. That makes a mockery of all of the discussion that took place in the lead-up to the recent referendums, actually. A considerable proportion of public disquiet around those referendums had to do with the attitude to mothers and motherhood in our society. It was not everybody's concern but it was an issue for quite a few people according to the reports and surveys that were done. I would take the book on it that most people, if they were aware of this, would be outraged.
It is not theoretical to talk about the importance of mothers and fathers, distinctly and separately, for children. It is only because the Government does not see that mothers have a specific contribution to the life of children and that fathers have a specific contribution to make to the lives of children, notwithstanding all the research that shows what children suffer when they do not have father figures in their lives, for example. The Government does not care. It only requires that you have one genetic parent in your life under these arrangements. It does not care if you have only one parent and it does not care whether you have a mother or whether you have a father. That is a scandal. It is not solely, as is often claimed, religious-minded people who would object to this. It is anybody with a titter of wit and a titter of sensitivity to the reality of children's lives, it seems to me. It is abhorrent to me and to many others, bad enough that this is to be happening at all, but that it is so sweeping.
I said this before in criticising the ombudsman and others. When it comes to children's rights, and all the talk and the cant about standing up for children's rights in this society, when it comes to it the people with the power are not interested in children's rights until the adults have got what they want. That is at the heart of this legislation. The adults must have what they want, even if the child does not get to have a mother or a father, even if the young man commissioning the child is immature at 21 once the regulator is are satisfied, even if others might not be, that there is no exposure to harm or neglect. No standards whatsoever are being applied here, that is, objective standards in respect of the entitlement of the child to have a father and mother in his or her life.
I would also like to ask the Minister one specific question. I am sure the answer is elsewhere in the Bill but since the section in question is referred to in this section, section 56, I will ask now. Section 56(4) provides:
The intending parents ... shall give an undertaking in the specified form, before the section 53 application concerned is made, that he or she shall—
(a) take all necessary steps to provide care and protection, prevent harm or neglect to, and ensure the welfare of, any child born as a result of AHR treatment provided pursuant to the surrogacy agreement, and
(b) make a section 65 application in respect of any child born as a result of AHR treatment provided pursuant to the surrogacy agreement.
That section 65 application is, of course, the application for the parental order. What happens if, despite the undertaking, the intending parent or parents does or do not eventually make the section 65 application?
There was an awful lot there. Individuals who are born without gender-specific characteristics, such as a uterus, know from a relatively young age that they do not have a uterus. A girl will probably find that out by her 14th birthday. I acknowledge that when this was raised last week, the Minister said it would be under review. I think he gave a little bit of latitude that at the three-year review, he is going to do that. However, at 21 it would be well established, for a woman in particular. Probably by time she reaches 21, she will have had an awful lot of surgeries. For quite a number of the couples I know, that is the situation that has arisen. From that perspective, the age of 21 is most certainly appropriate.
What the Senator appears to be suggesting is that the criteria should be narrowed to exclude men. We are back to the previous argument, which is a contention that men should not parent children on their own. I object to that. I think it is fundamentally wrong and fundamentally flawed in its thinking. The suggestion is about putting in a prohibition here to the effect that a single male at 21 is not going to be mature enough and is not going to be allowed. I would like to see the public reaction if we put that into legislation. I would be very confident that we most certainly would not ever do any such thing.
The Senator also uses terms like children being sundered from their parents, from their mothers. He raises the issue of motherhood and suggests that motherhood is being undermined here. We are living in a society where science has afforded the opportunity for people with fertility issues to advance and to have children. In fact, we have been living in that society since 1978. There is some optimal motherhood standard that is being put out here that is incorrect and does not exist. Last week, there was talk in this House about denying a child breastfeeding, for instance. There are two angles on that one. First, not every woman who gives birth naturally, without all the intervention of fertility treatment, actually is able to breastfeed or wants to breastfeed.
While breastfeeding is laudable and to be encouraged, there should not be an apartheid with people either in or out. We go to great lengths to try to support breastfeeding. While we are on this subject, I note that a recent winner of breastfeeder of the year was a mother via surrogacy. Mothers of surrogate-born children can induce breastmilk to feed their children. A number of women on a surrogacy journey attempted to do that, myself included, but I stopped because it fed into the idea of having to attain a perfect standard of motherhood. If you cannot give birth yourself, then you cannot obtain that perfect standard of motherhood, so I rejected the idea. We did a great deal of counselling and had many discussions for years before we ever made the choice. This standard of motherhood is on the same page as denying that surrogates can make choices about their own bodies.
The idea that there are all these misled and exploited poor women is not true. In the tiny minority of cases where it might be true, there are safeguards in the legislation and the clinic, country and standards will not be approved. What is happening in that country and in the proposed avenue will be examined, although I appreciate that this is domestic legislation. The idea is not true, yet it is being repeated time and again.
Another idea being put about is that the Government and intending parents via surrogacy are deliberately depriving children of their genetic histories. Children of intending parents can be the full genetic children of those parents. They are all of those things. In the other category of intending parents, one of the parents will be genetically related to the child. Here is another interesting fact, though. Ormond Quay Paternity Services is the organisation that provides genetic testing. All of us who have been down this road have paid it thousands of euro to expedite our genetic testing to ensure that we can bring our children home and our children are entitled to citizenship. We have waited for the email confirming that the intending fathers are 99.99% the biological fathers of our children. Ormond Quay Paternity Services also provide DNA testing for the courts. We have to go to that organisation because it is the service provider for the courts and any report it produces is an acknowledged report. According to its annual report, 33% of the men in relationships with women who have given birth to children are not the fathers of those children. Out there in the public sphere of people who do not need surrogacy to have families, there are people rearing children who are not their biological children. I put this to the Minister a long time ago in a submission. We have a particular category of case before the courts where people are contesting paternity or claiming it, but one in three of those fathers is not the father of the child he believed was his. If we follow this logic through and apply the same standards as obtain for a couple who can give birth, are we going to start genetic testing at the Coombe hospital? Everyone is to be suspicious because we want to make sure-----
Does the Senator make-----
Senator Seery Kearney, without interruption.
-----that the children are only being reared by their biological parents.
All sorts of thing constantly go on in society. Step-parents rear children. I have a blended family visiting the House today. Blended families work. They rear children all of the time. As such, to speak about it as being prejudicial to a child born of surrogacy is to deny the reality of what happens in the world where surrogacy is needed.
Other things have been said about the parents. The allegation made to the Minister is that he has been captured by powerful groups. Let me describe those groups. They are mammies and daddies, and daddies and daddies, who have full-time jobs, are rearing their children and may be caring for elderly or ill family members. When their children are put to bed at 9 p.m., 9.30 p.m. or 10 p.m., they get on Zoom calls with one another and discuss how they can ensure that their children have equal rights under the law, which I am glad to say we have achieved. They are the “powerful groups”. No one is funding them. They are doing all of this voluntarily in their own time. They are the intending parents, people who want and are committed to a standard of motherhood and standard of fatherhood. They are also not well-heeled southsiders. Maybe that could be applied to me, but I doubt it because I, like many other surrogate parents, have been mortgaged to the hilt. We have sold our future financial security to try to realise motherhood and fatherhood. That is what they have done and who they are. They are not some powerful group or big influential lobby. I have seen anti-surrogacy advocates sponsored by the Vatican get to the UN. All of that is paid for, but our advocacy is not. I will not even allow anyone to buy me a cup of coffee on this journey lest I be accused of benefiting from it in some way. I have not benefited at any point.
I hear talk of an evidence base. The evidence base is from the University of Cambridge, which is well known and qualified. It conducted a longitudinal study of children born via surrogacy. The university has measured them using every possible metric and compared them to children not born via surrogacy. On every possible metric, they compare favourably. They are children who were born and reared with empathy and compassion. My comments relate to intending parents, just in case the Chair was about to tell me to keep to the topic. The children are reared with compassion, understanding and the sense that, while not everything in life goes right, people should see things through and try their best to overcome whatever impediments are put before them.
We have the family of Lucy Fallon and all of us have been influenced by the book, Baby Ava, written by Caroline O'Flaherty. Both of them were mothers who died. This Bill gives the opportunity to have that motherhood recognised. They were women who, like all the other women and the men who are here, have gone to the ends of the earth for a standard of parenting and to devote everything to their children, who have sold their futures, who have sold everything to try to make sure they have that opportunity for parenthood.
With regard to the inference on having a gender-specific prohibition, organisations that are advocating for same-sex couples in surrogacy, as I said last week and the week before, are disappointed and fearful that the regulatory authority may engage in prohibition by stealth. Contrary to what is being put into this debate, that is their position. They are fearful that we are pulling up a ladder and not allowing same-sex couples to become parents. I disagree with them on that. The discussion on intending parents goes on here and we talk about those people. They are real people who have hit major impediments in their lives and are trying to overcome them. We are recognising, as a state, that there is a fertility treatment out there that can be provided to those people and we want to make it is as safe as it can possibly be. That is what this legislation does.
There was much discussion and description last Thursday of my first encounter with Senator Mullen. I disagree with the characterisation of me in that but I am strong on this, of that there is no doubt. I was a lot less strong then than I am now, but that comes from having support in numbers, and Senator Ruane is especially within that.
In the course of another debate, the reference was to “these people” who undertake surrogacy. Those were the precise words that I objected to - “these people”. What are "these people"? What type of people are “these people”? Clearly, they are people who cannot be 21 years of age, they cannot be trusted and they are going to exclude motherhood as a concept. Nothing could be further from the truth. My engagement at the end was to say that maybe the Senator will speak more compassionately and with more empathy when he realises “these people” are in the room and I am one of them. That is exactly what I said because, God knows, I sat in that seat practising it for ages because I thought that the minute I said that, it was me committing to my personal family life going out into the public sphere, and it did later. The Leas-Chathaoirleach was especially kind on that evening, which was a very frightening evening.
There is a characterisation of the intending parents as selfish adults demanding our way or insisting that we have our way. That is not true. We are human beings desiring to become parents. We do not believe we have a right to be parents. We do not believe that we should absolutely be guaranteed a child. We do not. We go into this with the same odds as IVF and the odds are not always in favour of the couple or the individual who undertakes this. That is not the case. The people who go into this, these people, these intending parents, have to meet all of these criteria and have to ensure they are able to do that before they have the single chance to hold their child in their arms after experiencing devastation in many cases. That goes for same-sex couples as well as opposite-sex couples because they also experience miscarriages in surrogacy and disappointment and heartache along the way. Despite this idea that we have a right, we have no right. Nobody has ever asserted a right. None of these people have ever said they have a right to a child. None of them have.
Our child is called Scarlett because in all of the disappointments, I used to pull myself up off my knees and say that tomorrow is another day, just like Scarlett O'Hara in “Gone with the Wind” except without the big dresses. Tomorrow was another day. In that tomorrow, I followed Fiona and Seán, and I was there with Suzanne - we met at the DNA testing for both of our children in Delhi. Tomorrow was another day and on that tomorrow, we got to hold our child. My promise on that day was that I would dedicate the rest of my life to the service of her happiness, and that is what we do. That includes fighting hard and maybe strongly, and maybe - what were the words that were used about me? - he had to brace himself, although those were not his exact words.
I still am.
It is because my motherhood and the motherhood of “these people” is such that we want our children to be equal, we want our humanity to be acknowledged and we want to become parents. We do not believe we have a right to it any more than anybody else, but we want to become parents. When we become parents, we have those responsibilities that come with parenthood, the responsibilities of care and keeping, loving and kindness and earning money to make sure they are fed and clothed, in exactly the same way as my colleagues would. We strive for that. We strive to make sure that, from the day they are born to the day of our last breath, we fulfil motherhood and all of its responsibilities, as well as its incredible joys, its incredible blessings and its incredible experiences. We acknowledge that. We promise that. That is how we are.
I have been called many things in my life, some of them unpleasant. I have earned the title of chief executive. I have earned the title of barrister-at-law. I have earned the title of counselling psychologist. I have earned the title of candidate, which was one of my lifelong dreams from when I was so high. I have earned the title of councillor. I say goodnight to Charlie Haughey every evening on my way out of this House. Every day, I pinch myself at the fact that, at this time, I am here, that I happen to have a life story that supports this legislation, that I have been able to engage with amazing people like Colm, Edward and Pamela, that I have been able to sit down with the Taoiseach of the country to discuss it, and that I have been able to do all of that because of the title of Senator. However, the best title of all is the title “Mammy”. There is nothing like it. It is the best title. The idea that we are people who sunder children from their birth mothers, that we do not honour motherhood and that we dismiss it, is an appalling distortion of the truth.
The same goes for the men who pursue being a parent with dedication and who then dedicate their lives to the service of their children. It has been my great honour to meet some of them. I have had my eyes opened to the importance of inclusive terminology and ensuring I refer to both opposite-sex and same-sex couples. We must make sure intending parents are honoured for who they are. We must ensure their experiences are honoured, as well as the experiences of the women.
This is extraordinary legislation. It is comprehensive. Indeed, some people are afraid it is so comprehensive and conservative that they may not be able to avail of it. We have heard the argument that it is too permissive and not tight enough. That does not reflect the experience of the people who are fearful it amounts to prohibition by stealth, which it absolutely does not. We have heard allegations that the legislation will lead to the creation of an industry. There is a total ignoring of all the provisions in the Bill setting out all the stages through which intending parents must go. They will be screened before they even face getting into the actual journey of surrogacy.
I absolutely reject the characterisation we have heard of intending parents. They do not deserve it. The Minister stood up for us valiantly last week, for which I am very grateful. We are human beings. We never dismiss motherhood. We never dismiss the amazing women who are our surrogates. Those women have a voice in all of this. They should not be dismissed as people who all are impoverished and helpless and who are used and exploited by us. None of that happens. I will leave it there. I am sure the Minister has lots to say.
I welcome former Senator Fidelma Healy Eames and the Minister for Justice, Deputy McEntee, both of whom have joined us in the Distinguished Visitors Gallery.
I am conscious that we have seven minutes remaining in the debate and the Minister wants to thank Members for their participation. I understand there will be a vote at 4 p.m. The Minister may make his closing remarks either before or after the vote. There will be fewer Members present after the vote but it is up to him. We will resume at 4.30 p.m to commence the next business. The Minister may make his comments either before or after the vote, whichever suits him.
I ask the Chair for a steer. I would very much like to make a final contribution. If a vote is called, will we be able to reconvene after it for final comments? Is that in order?
Yes, the Minister can come in after the vote.
That is outstanding.
There are only six minutes remaining. Given the importance of the Bill, coming back in at the end, as the Minister has requested, is appropriate.
I thank Senator Seery Kearney for her heartfelt, sincere, thought-provoking and personal contribution. There will be panic around Ireland if one in three fathers are not, in fact, the genetic fathers of their children. I thank her for clarifying that this statistic relates to fathers for whom a test is required as part of court proceedings. Without that clarification, there could be widespread panic across the hills and valleys of Ireland this evening. I am saddened to hear that the Senator, after years of valiant advocacy, has not availed of so much as a free coffee. Perhaps this evening, after the Bill is passed, I can buy her first coffee or, indeed, something a little stronger, given the day that is in it.
There was a long contribution regarding certain provisions in the Bill relating to intending parents. These provisions must be included because we will inevitably have some heartbreaking cases in which a couple, whether a man and a woman, two men or two women, are going through IVF treatment and surrogacy when one of them dies. Unfortunately, that does and will happen. We must legislate for posthumous assisted human reproduction. My officials and I have spent a lot of time with advocacy groups and experts working through this issue. The shared Government view, which is reflected in this legislation and, where necessary, in the amending legislation, is that if a couple are going through IVF treatment that results in the creation of embryos and the man dies, the woman can continue on her own with the treatment. She would be doing so as an intending single parent.
The question then arises as to what happens if it is the other way around. What if the woman dies? Obviously, the man cannot use the embryos himself. Can he take an embryo, which is the potential child of him and his partner, and seek help through surrogacy? Our answer is "Yes", if he is the genetic father. We are legislating for such heartbreaking cases where, in the course of the process, what was initially a couple becomes a single intending parent. Single people become parents all the time. We are also facilitating that directly through IVF and surrogacy. I repeat what I said on the previous occasion. There was a view expressed here last week that two women, two men, one woman or one man should not be parents. To clarify, I do not mean that was stated in respect of people who end up in that situation but it certainly was a view expressed in respect of the starting point for this legislation. That is a view held.
I thank the Minister for that important clarification.
In fact, the Minister has mischaracterised what was said. Senator Mullen did say two men should not be parents. He referred to there being no mother. The Minister's initial comment was an accurate representation.
Senator Ruane was not in the room. She has not been doing her homework.
We all have televisions in our rooms.
If she paid more attention, she might have a point to make.
The Minister, without interruption.
That is not a view to which I subscribe. All combinations of people, whether two women, two men, a man and a woman, one woman or one man, can be, and regularly are, fantastic parents. For all the reasons we have discussed, that is, of course, being legislated for in the Bill. We are setting out the pathway for single parents.
One of the questions asked was what happens if the intending parents end up not applying for a parental order. Senator Seery Kearney has brilliantly demonstrated how unlikely that is, given everything a parent or parents must go through to get to that point.
We have to remember this is a last resort for people. They have tried themselves; it has not worked. They will have gone through assisted human reproduction and it will not have worked. They will have spent a fortune. As the Senator said, they will have mortgaged their future in many cases. There is nothing they want more in the world than to be parents and to have this child. The idea that having got there, after years of a really difficult journey, they would then say-----
We are at 4 o'clock and the Minister still has not got to the contingency.
I will wrap up on this if the Leas-Chathaoirleach can give me a little bit of leniency of this.
It is unlikely that the parents would not apply.
I thank the Minister.
It is unlikely but in the case that it does happen, depending on the circumstances, if the child is already with the intending parents and they for some reason did not make an application for the parental order, the current laws would apply in terms of guardianship or parentage due to a genetic link but the other partner would not get the parental order, which is, of course, the entire purpose of the application. If an issue were to arise between the surrogate and the intending parents, that is a matter for the family courts, and it has been teased out at great length. If the child were abandoned, it would be a matter for the State to step in with State care, but it would also be up to the surrogate to raise the child. The surrogate would be recognised as the child's mother.
I will finish on this. I thank the Leas-Chathaoirleach for banging his bell lightly. Regarding intending parents, I am a parent of three wonderful boys and all of us as parents make mistakes. We make mistakes all the time. We make mistakes every week. We try and we fail, and we try harder and we keep going. It is a bumpy, imperfect world but we endeavour to do our best for our children. We love our children. We would give our lives for our children so we do everything we can. Then the question has arisen about parents through surrogacy. Senator Seery Kearney has more eloquently than I could ever attempt embodied the passion, the love, the heartbreak and the struggle involved for parents through assisted human reproduction - it could be IVF - and then through surrogacy. It is a hugely difficult process. It consumes people's lives. It consumes their finances. While we all endeavour to be the very best of parents, having spent two years immersed in this and having had the great privilege of meeting with, listening to and learning from people involved in surrogacy, there is no doubt whatsoever in my mind that these are some of the most loved and most cherished children in our nation.
It is quite unusual to have two senior Ministers in a debate in the Seanad so I thank both Ministers for being here.
Most of the time we cannot even get one.
As it is now slightly after 4 p.m., I am required to put the following question in accordance with an order of the Seanad of this day: "That section 56 is hereby agreed to in committee in respect of each of the sections undisposed of is, the section hereby agreed to in committee; Schedules 1 to 7, inclusive, are hereby agreed to in Committee; the Title is hereby agreed to in committee; the Bill is accordingly reported to the House without amendment; Report Stage is hereby completed and the Bill is hereby received for final consideration and passed."
Is that agreed?
Question put.
Will the Senators claiming a division please rise?
Senators Sharon Keogan and Rónán Mullen rose.
As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Official Report and the Journal of the Proceedings of the Seanad.
Question declared carried.
The Minister, Deputy Donnelly, has indicated that he wishes to make a few final remarks.
I thank the Cathaoirleach for the opportunity to say a few words. What I want to say is this: this legislation matters. It matters to the hundreds and possibly thousands of children who have been born through surrogacy and to their mums and dads, some of whom have never had full parental rights for their own children. I have met many of them. I received a beautiful video from two of them in the last few days. It matters to the many women and men whose last chance of having a child is through surrogacy.
It provides a clear, safe process through which they can now seek to have a child and be fully recognised as parents of that child, a process that protects the child and protects the surrogate. It matters to the many women and men who are using or who want to use assisted human reproduction to have a child. It builds on the new fertility services we have put in place with GPs and regional fertility clinics, where approximately six and every ten intending parents can have their issues successfully dealt with and advanced treatments including IVF. It builds on the State-funded IVF model that we have rolled out. It will now help facilitate donor-assisted IVF, including for same-sex female couples, and I am committing to funding that. It matters to the children who have been born through assisted human reproduction and surrogacy by ensuring their right to information right throughout their lives.
Many people have made this Bill possible. There are the extraordinary representative groups, such as Irish Families Through Surrogacy, Equality for Children, LGBT Ireland, Irish Gay Dads, and the National Infertility Support and Information Group. There has been amazing input and work by officials and clinicians. I refer to my officials, and two members of the dream team of three, are present in the Chamber with me today. There are also the officials from the Departments of Justice and of children. There also has been input from HSE clinical experts, private sector clinical experts and everyone involved in the Commission on Assisted Human Reproduction.
This day is also possible because of the tireless work and bravery of colleagues in the Oireachtas. The Joint Committee on International Surrogacy deserves great credit for its very well considered, thoughtful and balanced report. I thank the Oireachtas health committee for all its work on this Bill during pre-legislative scrutiny and everything that has gone with it. I thank my Government colleagues, namely, the Ministers, Deputies Helen McEntee and Roderic O'Gorman. I especially want to thank the Minister, Deputy McEntee, who has been very passionate about supporting the progress of this Bill. Last, but most certainly not least - indeed they should be first in that list - are individual Senators and Deputies. I must make special mention of Senator Seery Kearney and her advocacy for years to help to bring about this day.
Hear, hear.
I refer to her extraordinarily brave representations. Her contributions to the debate were very personal. People can be left feeling vulnerable when they expose themselves in that way. I acknowledge the Senator's contributions. I also acknowledge Senators Catherine Ardagh and Fiona O’Loughlin, who have been pushing on this, and pushed very hard on IVF to get that through as well.
There are further issues, which are being addressed in a forthcoming Bill. This Bill is massively important but we have further work to do. There are specific issues that different parents, intending parents and different groups have raised. We have done everything we can to amend this Bill to accommodate as many of those as we can. We made significant changes on Committee Stage and Report Stage in the Dáil to facilitate those, but there is further to go.
I will quickly go through some of these changes. The first is in respect of international donor assisted human reproduction. The plan is to facilitate the use of clinics abroad once they meet the required criteria of our regulatory authorities. This will be most relevant, but not exclusively so, for same-sex female couples. The Bill, as originally drafted, did not provide the same rights. Let us say, for example, an Irish couple is using fertility services in Dublin or Paris. Those availing of the facilities in Paris did not have the same access to parental orders as those here. I was not willing to stand over that, so we are amending that in the upcoming legislation.
I spoke briefly about the following issue, which Senator O’Hara also raised. The children of Irish citizens living abroad availing of assisted human reproduction or surrogacy have absolute rights to Irish citizenship, Irish passports and everything that pertains to an Irish citizen. It is a legally complex area. The initial legal view that the Minister, Deputy McEntee, and I got was that this would not be possible. We were not willing to accept that. Our officials, to their great credit, have engaged over a long period to find a legal route to this, and we will have it covered in the amending legislation.
We will be dispensing with the requirement for the consent of the parent or surrogate in retrospective applications of a parental order in exceptional circumstances. I am not sure we got to these amendments. Senator Seery Kearney tabled them. As I said previously, as far as I am concerned, the discretion of the courts is already provided for in this Bill. That is absolutely the policy intent, but we will make it explicit as well as implicit in the upcoming amending Bill.
In the past hour, we have been discussing the use of already created embryos where the donor has since died. That will be fully covered in the amending Bill.
With regard to fertility preservation for children undergoing treatment or who have a particular condition, we will ensure that includes both a condition or treatment, to be as inclusive as possible.
We will provide the courts with explicit discretion with regard to the residency requirements of the surrogate in retrospective surrogacy applications for parental orders. Again, this is already implicit and the policy intent is clear, but we need to make it explicit. If it is not possible to prove that the surrogate in a retrospective case was resident in the relevant jurisdiction for 12 months, the courts will have discretion to grant the order anyway.
There will also be further consideration of the interim period in regard to surrogacy. This is the period between the commencement of the relevant sections of the Bill and the establishment of the regulatory authority. We are working with the Courts Service in order that the High Court can hear these first cases. I cannot wait to see the first parents coming out onto the steps of the High Court with their parental order in hand. I am really looking forward to that. We are in the hands of the Courts Service to some extent. We are working with it to see how quickly it can facilitate that.
There will be an interim period essentially between commencing the Bill, which will be before the courts can take the first hearings, and establishing the regulatory authority. We are accelerating the establishment of the regulatory authority. I have already sanctioned the hiring of a project management team to get everything ready. I want that interim period to be as short as possible. My hope is that we can narrow it down to just a few months. I have asked my officials to do everything they can to have the regulatory authority up and running by the end of this year. Let us say it will be up and running in January and the Courts Service is able to hear the first cases in September or October, or as soon as possible at any rate. The interim period would be the time between those two dates and further consideration will be given to that in the upcoming Bill.
Where do we go from here? The Bill will now go to the President, and I hope he will sign it. We will continue with establishing the regulatory authority and working with the Courts Service. Critically, our aim is to have the amending legislation back before the Dáil the moment it reconvenes after the summer.
To all of the children of Ireland born of surrogacy, this is your day. To your mums and dads, brothers and sisters, aunts and uncles, grannies and grandads, this is your day. To those who are using or will use assisted human reproduction in the future, be it IVF, surrogacy or other supports, this Bill makes it increasingly likely that a day in the future will be your wonderful, joyous day too.
I thank the Minister for his words. By order of the House, as agreed under the Order of Business, we need to commence the Criminal Law (Sexual Offences and Human Trafficking) Bill at 4.30 p.m. However, Senator Mary Seery Kearney indicated she would like to say something. I am conscious that we have three minutes remaining and three Senators have indicated they wish to speak. I will try to accommodate all three speakers. Is that agreed? Agreed.
I thank the Minister, Pamela Carter, Edward Keegan, Colm McGuinness and their fourth official, who is unofficial, Lisa Cahill, who has done extraordinary amount of work. I thank the Taoiseach, Deputy Simon Harris, former Taoiseach, Deputy Leo Varadkar, and especially the Minister for Justice, Deputy McEntee. Most of all, I thank my husband and my beautiful daughter for whom I will go and get my parental order.
I will be extremely brief. This is a wonderful day for everybody who has worked so hard to get us to this point. When the Minister came into office, he promised a revolution in women’s healthcare. He is delivering that revolution and I am grateful to be part of it. I thank everybody who put their hearts and souls into this. I was very proud to be part of the special committee on international surrogacy. We produced a good report and I am happy this legislation is based on it. The rights of children born through surrogacy have now been safeguarded.
My message is that if anyone who has engaged in surrogacy or has been born through surrogacy felt stigma or shame at any stage, they should leave that behind today. That was not for them in the first place and it certainly is not for them now, so get rid of it. Enjoy the day. I too will be celebrating with them all when they get their parental orders.
I wish everybody here well. Senator Keogan and I have sought to make the case that there is another side to this issue. The happiness of people here today will make other people sad as a result of the denial of human rights, the exploitation of surrogate women and the denial of certain children of their rights. Every child is welcome and nobody should ever be stigmatised. However, I believe the day will come when we will look back and say this was retrograde legislation because it put the rights and aspirations of some people ahead of the rights of others and did damage to other people’s rights. I think we will see the day where this legislation is reversed because it is wrong to deny children their rights upfront and in advance. It is wrong to deny the real experience of surrogates who are abused. Many countries have banned this, including India, which used to allow it. There is a reason for that.
That is not true; that is false.
We have to respect each other's sincerity and the sincerity of each other's aspirations. When I used the term "those people", I always said it, as the Senator knows, with the deepest of respect for people, even when I disagreed with what they were doing or had done. Everybody deserves to be loved and cherished at the end of the day.
Senator Ruane has the last word. She should be very brief because it is 4.30 p.m.
Today is a good day; there you go.
Excellent.