Select Committee on Health debate -
Wednesday, 6 Mar 2024

Health (Assisted Human Reproduction) Bill 2022: Committee Stage (Resumed)

An Cathaoirleach

Apologies have been received from Deputy John Lahart. I wish him well. He had a fall last night, and he is recovering still.

The meeting has been convened to continue its consideration of Committee Stage of the Health (Assisted Human Reproduction) Bill 2022. Committee Stage of the consideration of this Bill is making good progress following meetings of 24 January and 21 February. I thank the Minister for Health for his continued engagement with this committee and for the receipt of further briefing documentation as requested by the committee at previous meetings.

Today we will continue with section 75 and make as much progress as possible. However, given the size of the Bill and the number of amendments, the committee may need to continue its consideration at a further meeting.

On privilege, members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I also remind members that they are only allowed to participate in a meeting if they are physically located on the grounds of the Leinster House complex. In this regard, I ask all members that prior to making their contribution to the meeting, they confirm they are on the grounds of the campus. I also remind all members that should a division be called, they must physically come to the committee room to vote.

I welcome the Minister for Health, Deputy Stephen Donnelly to our meeting here this morning. I also welcome his officials who, I understand, we may invite to clarify issues that may arise, as we have done in previous meetings. Is that agreed? Agreed.

A total of 256 amendments were tabled, and the committee has completed 144 of these. We will now resume on section 75 and amendment No. 145, and consideration of each further amendments in turn.

NEW SECTIONS

An Cathaoirleach

Amendment No. 145, which is in the name of an tAire, is a new section. Amendments Nos. 145 to 154, inclusive, 155, amendment No. 1 to 155, 156, 157, amendment No. 1 to 157, 158, amendments Nos. 1 to 6, inclusive, to 158, 159 to 185, inclusive, 187, 201 and 252 are related and may be discussed together.

Minister for Health (Deputy Stephen Donnelly)

I thank the Chair, and at the start, I want to flag that I would like to be able to ask the officials to contribute as well. I think today is an important day. Today is a day that we have been working towards in this Oireachtas and this Government for several years. I know parents have been campaigning for many years previously. Today we have the proposed legislation that will allow for international surrogacy into the future. My officials tell me we will be the first country in the world to legislate in this way.

Just as importantly, and more urgently, today we will be introducing the legislation that allows for retrospective parentage rights for children and their parents. We have hundreds of families around the country where the child or children do not currently enjoy the full rights and protections they should have to have their parents fully recognised as such. It is a matter for which people have been campaigning for many years, and I am so happy we are here today bringing this in. We are also going to make some important amendments to the Children and Family Relationships Act 2015 in terms of recognising parents. It is an important day.

I thank all of the men, women and children who have campaigned for so many years, many of whom I have had the great privilege of meeting. I thank colleagues right across the committee in all parties for their support for this legislation. I know that it has the strong backing of the Houses. I take the opportunity to thank my officials and the officials in the three line Departments who, I can tell you, have worked night and day to get us to this point here today.

When I move amendment No. 145, will I then speak to the group?

An Cathaoirleach

Please do, yes.

Deputy Stephen Donnelly

I move amendment No. 145:

“PART 8

INTERNATIONAL SURROGACY

CHAPTER 1

Interpretation, application and approval of surrogacy jurisdictions

Interpretation – Part 8

75. (1) In this Part—

“AHR counselling (SJ)”, in relation to AHR treatment (SJ) to be provided pursuant to a surrogacy agreement attached to a section 86 application, means a service provided by an AHR counsellor (SJ) under which he or she—

(a) if the application involves two intending parents, counsels such parents regarding the potential social and psychological implications that may arise in the case of such agreement being approved under section 86 and, if applicable, such parents, or one of them, as the case may be, being provided such treatment,

(b) if the application involves a single intending parent, counsels such parent regarding the potential social and psychological implications that may arise in the case of such agreement being approved under section 86 and, if applicable, such parent being provided such treatment, or

(c) counsels the potential surrogate mother regarding the potential social and psychological implications that may arise in the case of such agreement being approved under section 86 and such mother being provided such treatment;

“AHR counsellor (SJ)”, in relation to AHR treatment (SJ), means a person who has the requisite skills and judgment to provide AHR counselling (SJ) as regards such treatment;

“AHR treatment facility (SJ)”, in relation to AHR treatment (SJ) that the AHR treatment provider (SJ) may lawfully provide in the surrogacy jurisdiction concerned, means the premises in the jurisdiction at which the provider may lawfully provide such treatment;

“AHR treatment provider (SJ)”, in relation to a surrogacy jurisdiction, means a person based in that jurisdiction who lawfully provides in the jurisdiction AHR treatment pursuant to a permitted international surrogacy;

“AHR treatment (SJ)” means the AHR treatment referred to in the definition of “AHR treatment provider (SJ)”;

“approved surrogacy jurisdiction” means a surrogacy jurisdiction for the time being approved under section 77(1);

“intermediary”, in relation to a surrogacy jurisdiction, means any person (including a body corporate or unincorporated body) who lawfully provides, in that jurisdiction, a service (not being the direct provision of a legal, medical or counselling service) in relation to a permitted international surrogacy;

“international surrogacy”, in relation to a surrogacy jurisdiction, means a surrogacy agreement in the specified form—

(a) entered into by—

(i) a surrogate mother who has been habitually and lawfully resident in that jurisdiction for not less than two years immediately preceding her entering into the agreement, and

(ii) either—

(I) both intending parents, not less than one of whom has been habitually and lawfully resident in the State for not less than two years immediately preceding his or her entering into the agreement, or

(II) in the case of a single intending parent, that intending parent where he or she has been habitually and lawfully resident in the State for not less than two years immediately preceding his or her entering into the agreement,

(b) without prejudice to the generality of section 76, where the entering into that agreement by that surrogate mother and those intending parents or that intending parent, as the case may be, is lawful in that jurisdiction, and

(c) under which the surrogacy the subject of the agreement is to be undertaken in that jurisdiction;

“legal practitioner (SJ)”, in relation to a surrogacy jurisdiction, means a person who is authorised (howsoever described) in that jurisdiction to provide legal advice on a surrogacy agreement (SJ) which may be, or has been, entered into for the purposes of a surrogacy the subject of that agreement which may be, or has been, undertaken in that jurisdiction;

“parental order” means an order granted by the court under section 99(1)(a) for the transfer of the parentage of a child;

“permitted international surrogacy” shall be construed in accordance with section 85(1);

“relevant donation (SJG)” means, as appropriate—

(a) a donation of gametes made in accordance with—

(i) section 26(1) or (2), or

(ii) the law of a jurisdiction (whether or not it is a surrogacy jurisdiction) other than the State,

for use in the provision of AHR treatment, or

(b) the gametes the subject of such donation;

“relevant donor (SJG)”, in relation to a relevant donation (SJG), means the person who has made or proposes to make the donation;

“section 83 consent” shall be construed in accordance with section 83(1);

“section 86 application” shall be construed in accordance with section 86(2);

“section 98 application” shall be construed in accordance with section 98(1);

“surrogacy agreement (SJ)” means a surrogacy agreement referred to in the definition of “international surrogacy”;

“surrogacy jurisdiction” means a jurisdiction outside the State where—

(a) the surrogacy the subject of a permitted international surrogacy may be lawfully undertaken, and

(b) the embryo transfer concerned is to be undertaken and, subject to section 99(2)(a), the child (if any) resulting from that transfer is expected to be born.

(2) A reference in this Part to the spouse, civil partner or cohabitant of a surrogate mother shall be construed to include the equivalent (if any), under the law of the surrogacy jurisdiction concerned, of a spouse, civil partner or cohabitant as defined in section 2.”.

This group, essentially, is the forward-looking international surrogacy set of amendments. I have moved amendment No. 145 but as the Chair said, it includes a great deal of amendments. This large group of amendments relates to the insertion of a brand new Part 8 into the Bill, which essentially has the scale and complexity of a stand-alone Bill. This will see the introduction of a regulatory model for international surrogacy, and these amendments will provide for a route to formal recognition by the State of prospective surrogacy arrangements undertaken by Irish residents in other jurisdictions.

Neither I or my officials are aware of any state that has attempted to provide such a bespoke and comprehensive legislative solution to the issues arising from its own citizens engaging in cross-border surrogacy. In this regard, I record my great appreciation for the work undertaken by the special Oireachtas Joint Committee on International Surrogacy. What we have here, and colleagues will be aware, is that of the 32 recommendations from the Oireachtas committee's report, we have 30 that have either been fully or partially accepted but mainly fully accepted - the committee has been briefed on all of that - as reflected in this new set of amendments. We have also sought to align these new provisions with the domestic surrogacy provisions in the Bill, as initiated, as much as possible and appropriate.

I ask for the Chair's guidance. I have a very long briefing note, which I can read out, similar to when we are introducing a new Bill on Second Stage and would read through a Bill section by section. I have a 20-page, section-by-section note that I am obviously more than happy to read out before the committee, but if members of the committee would prefer, we can take it as read and just have a discussion about the amendments. I will do whatever is most useful to the committee.

Deputy David Cullinane

I want to speak on this. I propose that we take it as read. We had briefings with the Minister’s officials, so I think it might be more useful to have an over-and-back interaction on some of these issues. I have questions. Obviously, it is up to other members to decide for themselves.

Deputy Stephen Donnelly

I have a note on each amendment. If anyone wants to look at any of the particular amendments, I can read them out, or I can go through them all, whatever the committee members prefer.

Deputy Bernard J. Durkan

Would it be possible to give us an initial overview and go into the detail later on?

Deputy Stephen Donnelly

I will drive through this fast, and we can obviously come back to any of it.

Amendment No. 145, which is under the new section 75, is in the first section of Chapter 1 of the new Part 8, and it simply defines certain terms. The definitions are largely adapted from those in the interpretation section of the Bill, which is section 2.

Amendment No. 146 introduces a new section 76, which reiterates that nothing in the proposed new provisions can relieve the obligations on any persons involved in an international surrogacy from complying with the law of the country in which the surrogacy is undertaken. Amendment No. 147 introduces section 77 to empower the authority, the AHRRA, to approve by order a country, State or other jurisdiction as one in respect of which application seeking the approval for individual international surrogacy arrangements can be made. This is essentially the green list.

Amendment No. 148 introduces section 78. It defines a single term: AHR information. Amendment No. 149 introduces section 79, which states that the AHRRA may add a surrogacy jurisdiction to the green list and, where it does, it should prepare a document in the official language of that jurisdiction, as well as in Irish and English. Amendment No. 150 introduces section 80, which deals with specific details to be included in that document.

Amendment No. 151, which is in section 81, mirrors the provisions of the new section 52 brought in by amendment No. 106, which has already been agreed in respect of domestic surrogacy. It states that the AHRRA should not approve an international surrogacy agreement until it is satisfied that there is no potential risk of harm or neglect to the child or another child.

Amendment No. 152 introduces section 82 and confirms that the AHRRA shall not approve an international surrogacy agreement unless it is satisfied that appropriate counselling has been received by the intending parents and the surrogate mother concerned. Amendment No. 153 introduces section 83, which states that the AHRRA shall not approve an international surrogacy unless every intending parent has provided the appropriate informed and voluntary consent. Amendment No. 154 introduces section 84 and sets out the specific details to be included in the consent. Amendment No. 155 introduces section 85 and sets out the circumstances under which surrogacy undertaken by Irish citizens in other jurisdictions may be permitted. The provisions in the new section are similar to those for domestic surrogacy.

Amendment No. 156 introduces section 86, which is a framework for the AHRRA to grant approval of an international surrogacy agreement provisions similar to those corresponding to domestic surrogacy. Amendment No. 157 introduces section 87 and mirrors domestic surrogacy requirements that a woman must meet in order for her to act as a surrogate mother under international surrogacy. Amendment No. 158 introduces section 88 and mirrors the domestic provision requirements for intending parents in order for the international surrogacy agreement to be approved.

Amendment No. 159 introduces section 89. Again, it mirrors the domestic provision and confirms the prohibition of commercial surrogacy, which is the making or receiving of payments in relation to the international surrogacy arrangement. Amendment No. 160 introduces section 90, mirrors the domestic provision and clarifies that the reimbursement of reasonable expenses incurred by the surrogate mother is permitted. It outlines the details of what reasonable expenses are. Amendment No. 161 introduces section 91, mirrors the domestic provision and confirms that an international surrogacy agreement is not an enforceable contract, except in relation to the payment of a surrogate mother's reasonable expenses.

Amendment No. 162 introduces section 92, mirrors the domestic provision and prohibits the publication of advertisements concerning entering into or facilitating an international surrogacy agreement. Amendment No. 163 introduces section 93, which outlines the circumstances where, in an international agreement, the services of an intermediary in another jurisdiction may be availed of by intending parents. The provision of services by the intermediaries must be in accordance with the law of the jurisdiction concerned.

Amendment No. 164 introduces section 94, mirrors the domestic position and confirms the requirement for independent legal advice to have been received by each party to the international surrogacy prior to providing their consent. Amendment No. 165 introduces section 95, sets out the requirement for information to be provided to the AHRRA, including in respect of the surrogate mother, the intending parents, any donor involved, the date on which the embryo transfer was undertaken, and whether the embryo transfer resulted in a pregnancy, similar to the domestic surrogacy arrangements.

Amendment No. 166 introduces section 96, which confirms that in a case where a donation has been used to create an embryo, pursuant to international surrogacy, the donor concerned is not the parent of any resulting child and has no parental rights or responsibilities in respect of that child. Amendment No. 167 introduces section 97, mirrors the domestic provisions and provides for child born as a result of international surrogacy to reside with the intending parents, if the surrogate mother consents in the specified form.

Amendment No. 168 introduces section 98, mirrors the domestic arrangements and sets out the rules governing the making of an application to the Circuit Court for a parental order in respect of a child who is born as a result of international surrogacy. A parental order is effectively the mechanism through which the parental rights and responsibilities are transferred from the surrogate mother to the intending parents. Amendment No. 169 introduces section 99 and sets out the criteria that the courts need to take into account when making a decision on an application for a parental order in respect of an international surrogacy. The provisions are similar to the domestic surrogacy provisions. There are some differences that reflect the potential role of intermediaries in international surrogacy where the courts can waive the requirement for the child to be born in the same jurisdiction that the embryo transfer took place, if it is satisfied that there are exceptional circumstances justifying such a waiver.

Amendment No. 170 introduces section 100, mirrors the domestic arrangements and outlines the effects of a parental order application that is granted, most notably that the child becomes the child of every intending parent named in the parental order. Amendment No. 171 introduces section 101, mirrors the domestic arrangements and provides for maintenance by the AHRRA of a national surrogacy register in relation to international surrogacy. The register contains the details of each party to the arrangement and the child born as the result.

Amendment No. 172 introduces section 102, mirrors the domestic arrangements and sets out how the national surrogacy register will interact with register of births. Amendment No. 173 introduces section 103, mirrors the domestic arrangements and outlines the non-identifiable information that a person born as a result of international surrogacy arrangements can access in respect of a donor who provided gametes using his or her conception and also in respect of other persons who have a common donor. The section also provides for the donor or donor-conceived persons accessing certain information in respect of a person born as a result of an international surrogacy.

Amendment No. 174 introduces section 104. It mirrors the domestic arrangements and outlines the information from the national surrogacy register that can be provided to a person born as a result of an international surrogacy. Amendment No. 175 introduces section 105, mirrors the domestic arrangements and outlines the information from the register in respect of a donor that can be provided to a person born as a result of international surrogacy. Amendment No. 176 introduces section 106, mirrors the domestic arrangements, outlines the information that can be provided from or recorded on the national surrogacy register and the national donor conceived persons register.

Amendment No. 177 introduces section 107. It mirrors the domestic arrangements and provides for a person whose name is on the national surrogacy register to update his or her information. Amendment No. 178 introduces section 108, mirrors the domestic arrangements, and confirms the AHRRA can refuse to comply with an application made under the proposed new Part 8, which has not been correctly completed. Amendment No. 179 introduces section 109, mirrors the domestic arrangements and provides for the AHRRA to seek additional information in respect of an application. Amendment No. 180 introduces section 110, mirrors the domestic arrangements and clarifies that information sought by the AHRRA may not necessarily relate to information required to be provided under any specific form.

Amendment No. 181 introduces section 111, outlines the actions the AHRRA can take to request from the intending parents additional information or reasons for non-compliance with the undertakings made to take appropriate care of any child born as a result of international surrogacy.

Amendment No. 182 introduces section 112. This is the first section of Chapter 4 of new Part 8 and defines the single term "relevant offence".

Amendment No. 183 introduces section 113, which sets out the instances in which a person might be tried in the State for alleged relevant offences that were committed under the proposed new Part 9.

Amendment No. 184 introduces section 114, which outlines the documents which shall be evidence in any proceedings relating to an alleged offence.

Amendment No. 185 introduces section 115, which confirms that where a person has either been acquitted or convicted of an offence in a place outside the State they will not be proceeded against in the State for the same alleged offence.

Two of the three remaining amendments in this grouping, which are amendments No. 187 and 201, are cross-references to later sections.

Amendment No. 252 as a reference is related to the Long Title.

Deputy David Cullinane

There are quite a lot of amendments and we are talking about the section on international surrogacy and all the issues related to that so I have a number of questions.

First, I recognise it is an important day for all those intending parents who are waiting for retrospective parental recognition. We have all met and dealt with many of them and this will be a really important day that, in the first instance, we are discussing this issue. I hope in due course the Bill will be passed. It was always going to be very difficult to legislate for international surrogacy given, as the Minister said, there is no base for international standards we can refer back to and look at. It is groundbreaking that we are looking at it, which is important in and of itself. I recognised from the start that there is an awful lot we have to balance here. There were going to be some really difficult issues. When we first discussed this, there was a sense of how do we legislate in this area, how do we regulate and how do we enforce it because, on the one hand, we want to allow for altruistic surrogacy but we also have to then interact with other jurisdictions, we want to avoid exploitation and we want to make sure commercial surrogacy is not part of what is happening here. There are moral and ethical issues that arise in all of this and need to be balanced. Then of course in the middle of all of this has to be the right of the child. Given all of that, as I said at the start of this process, the Minister's officials and those who have been working on this Bill have done a really good job to frame in legislation protections, standards and regulations on international surrogacy that are groundbreaking. That does need to be recognised, to be fair.

Enforcement is key to all of this and, therefore, I have a number of questions for the Minister. First, amendment No. 160 provides for appropriate, reasonable expenses related to pregnancy and they include clothing and childcare. That is extensive and satisfactory but will he outline if any concerns have been raised with his office or his officials in that regard? It is important we get right what are appropriate and reasonable expenses.

Amendment No. 159 will prohibit commercial surrogacy, which I support. Amendment No. 163 makes an exception for fees for intermediaries. I have been asked to get clarity on how that will work and how is it envisaged that will be enforced because payments to intermediaries could open up, in some people's eyes, the possibility of commercial surrogacy through the back door. I am satisfied that reasonable protections are built into it but, at the same time, it is important in the context of these amendments to this section for the Minister to give assurances to people that the fees for intermediaries will not open the door to any back door approach to commercial surrogacy and exploitation. It is important he gives clarity on that.

Activities carried out in other jurisdictions that may not be crimes in those jurisdictions is the tricky one in terms of how we then enforce our own rules. How do we enforce our own regulations with regard to jurisdictions which have different laws to us?

With regard to the new section 113 on jurisdiction, what happens if a person engages in commercial surrogacy that is not in contravention of the laws of the surrogacy jurisdiction but is in contravention of Ireland's laws or the surrogacy agreement as approved by AHRRA, as the regulator? For example, in amendment No. 183, under proposed section 113 (1) (c) (ii) of our proposed Bill the act must be an offence under that jurisdiction for it to be prosecuted in this jurisdiction. It raises interesting questions around how we can enforce breaches of the law that might be a breach of the law in Ireland but not in other countries and how the regulator will deal with all of that. To reinforce the point, the role of the regulatory authority will be key. It will have significant responsibility in monitoring and enforcing compliance abroad. I would like to hear from the Minister how the regulator will be able to do that in the circumstances I have outlined where there are different rules and laws in different countries.

This is a very reasonable, earnest and good section that deals with a very complex issue. I do not doubt it would have been really difficult for officials to balance all those rights. Maybe we will not get everything right. Maybe there are issues we might have missed and we may have to come back to at some point, which the review will deal with. I look forward to the Minister's response to some of those points.

Deputy Stephen Donnelly

Chair, will I respond to the points one by one?

An Cathaoirleach

There are so many questions, it is probably better to do that.

Deputy Stephen Donnelly

I thank the Deputy for his questions. On reasonable expenses, we have tried to be as broad as possible while stopping short of, "Here is a payment." That would then be commercial surrogacy. If committee members have additional proposals that are not contained within this, I am very open to them. We have tried to include the direct costs such as medical costs or anything that might be involved like that, but also indirect costs such as loss of earnings or taking time off. We have tried to go really quite broad and I am very open to anything members feel is not included.

Second, on payments to intermediaries this is something the AHRRA will have to look at. Amendment No. 163 makes several references to reasonable expenses. There are reasonable expenses and then something saying that the fees should be in line with other commensurate professional fees in that jurisdiction. We all know what we are trying to guard against here, which is that an intermediary charges an amount that covers them and provides their profit and then contains a hidden payment to a surrogate.

Deputy David Cullinane

On a point of clarity, we are not defining at all what the rate of those fees will be. We will leave it to the regulator to look at what would be a reasonable fee depending on the country in which the surrogacy taking place.

Deputy Stephen Donnelly

Yes, exactly. Section 93(b) states:

... the fees paid to the intermediary ... are reasonable having regard to all of the circumstances in the case including -

(i) the nature of those services,

(ii) the level of fees paid in that jurisdiction for services ... comparable to those services...

The AHRRA will be able to see if there is something completely out of whack and then it would say no, that does not appear to be compliant with this. That is the intention there.

Deputy David Cullinane

If it was found as part of an investigation that fees that were not approved were paid are there penalties for that? Obviously, we can in law and through the regulator say, "Here are reasonable expenses", but what if other money was paid that may not have been declared and that comes to light?

Deputy Stephen Donnelly

Then they would be in violation of the agreement. I will ask Mr. McGennis to come in on the different stages in the process where the AHRRA will look at exactly these issues.

Mr. Colm McGennis

It would be looked at in the approval from the AHRRA in the first place. Basically the intermediary will estimate or outline what it suggests the type of fees that would be paid.

It is up to the AHRRA to accept that or not, and to approve or refuse to approve the application in the first place. I suppose, if things come to light, maybe it would be more a matter for the courts. They also have to check what was spent or what was paid and how that tallies, I suppose, with the Estimates, and whether they are satisfied what was paid was reasonable.

Deputy David Cullinane

I accept you have to take at face value what is being told. There is a process there-----

Mr. Colm McGennis

Yes.

Deputy David Cullinane

-----and you hope that the process will work. I am satisfied with the response, Minister. There were a couple of other issues as well.

Deputy Stephen Donnelly

The Deputy's third question was if commercial surrogacy is allowable, let us say in the US, you are not in violation of the law in the US by engaging in commercial surrogacy. That would not get pre-approval because commercial surrogacy, on our side, would not make it through. The AHRRA would not grant approval. If you went ahead you would not get approval from the courts on that basis because it would be a clear violation of one of the central tenets of the scheme. Was there a fourth issue?

Deputy David Cullinane

No.

Deputy Róisín Shortall

I would like to recognise the groundbreaking nature of this legislation. I think it is appropriate that we pay tribute to the special committee that considered this for several months and produced a report, which has been largely taken on board by the Minister. It is important that we note and acknowledge the work put in by the members of that committee.

I want to speak to a few of my amendments in this group, the first of which is my amendment to amendment No. 155. We have already discussed some of these issues in respect of domestic surrogacy. The same principles apply to international surrogacy and it is important that we address them. My amendment to amendment No. 155 concerns AHR professionals who are concerned that they will not be able to give medical advice to anyone who engaged in a surrogacy arrangement outside of the permitted framework. This is not an argument for allowing arrangements outside of that framework. There is no issue about the framework. My point is that where somebody gets involved in an arrangement that is outside the framework, and requires medical advice, you would expect that AHR professionals would be able to give that advice. For example, if a person needed a D and C, dilation and curettage, following an unpermitted treatment abroad, surely AHR professionals would be able to provide services at that point. The concern is that AHR professionals, under the existing proposals, would not be protected if they gave that advice in circumstances where a person engaged in unpermitted arrangements. My amendment reads: "the giving, by a medical practitioner or medical practitioners (SJ), of medical advice in relation to any agreement or other arrangement.”. My amendment seeks to address the issue where somebody had engaged in an unpermitted arrangement but the person still needs medical advice, which should be provided by the people who have the expertise in that area.

Next is my amendment to amendment No. 157. Again, this issue arose in terms of domestic surrogacy. I refer to where it is assumed that the intention of this section is to ensure that a surrogate does not carry a baby to birth on more than two occasions, not merely that she enters an agreement on no more than two occasions. Under the current wording, if her first attempt at pregnancy ends in an early miscarriage or the agreement expires before she becomes pregnant, she will be precluded from more than two attempts. We talked about this provision in respect of domestic arrangements. It would seem that insufficient provision is being made for the very large number of pregnancies that end in an early miscarriage. My amendment to amendment No. 157 reads: "In subsection (2)(a), line 3, after “a” to insert “clinical”. So where a clinical pregnancy is established we qualify the pregnancy in the context of two pregnancies with the insertion of the word "clinical" .

I have tabled six amendments to amendment No. 158, which deal with definitions of treatment. My amendment No. 6 to amendment No. 158 seeks to insert the phrase "for uterine reasons". Again, AHR professionals are concerned that the current wording only describes simple infertility when infertility is becoming increasingly complex as more research is done and understood as to the reasons for infertility. There can be many reasons which are not covered by the wording in the Bill or, indeed, in respect of domestic surrogacy. My amendment calls for us to extend the meaning of the term "infertility" to include "for uterine reasons", for example, where a woman has a uterus that is too small to carry a pregnancy to full term. I have tabled six proposals related to this matter.

I want to return to the discussion we had the last day about the legal mother and the assumption that the birth mother is the legal mother. I acknowledge the note that the Minister has provided on the matter. Like all judgments, they can be open to interpretation. The Minister has provided an extensive note but those who have expertise in this area would rebut a number of points that he made in his note arising from the 2014 Supreme Court judgment. I do not want to get involved in too much of this because it is quite heavy stuff. However, the Minister in his note referred to the Supreme Court and the maxim of the birth mother being the legal mother; he quoted a statement which recognised the medical and scientific fact that a birth mother was the mother of the child, which did not specifically address the question of surrogacy. While that statement is correct, the Minister's note omitted the preceding line in which Mrs. Justice Denham says: "It appears to me that in fact the maxim mater semper certa est was not part of the common law of Ireland. It was a statement which recognised the medical and scientific fact that a birth mother was the mother of a child." She is referring to medical and scientific facts that the mother had both gestational and genetic elements but not any legal precedent. Of course the science caught up with that when the mater was accepted as the final word on this. It was at a time when the idea of surrogacy was not envisaged. There are a number of rebuttals to the points made and conclusions drawn by the Minister from the Supreme Court judgment.

For example, the court stated that the birth mother, historically, was the woman who had both genetic and gestational elements, but that is just a comment on the historical arrangements before there was surrogacy. The court never states that the surrogate is the same person as envisioned as the historical understanding of the birth mother.

I have a couple of pages of rebuttals of the points the Minister is making and the conclusions he is drawing arising from the 2014 judgment. I do not think we will resolve that today by any means. I suggest that I send the Minister those rebuttals on the comments that have been made and ask that he look at this again in the context of the advice he has received. The thinking on the interpretation of that 2014 judgment has changed over the years. There were assumptions made that did not take into consideration the potential of scientific developments. At the time, I think there was a very simplistic interpretation of the Supreme Court judgment, and I think some of that has carried on to the present day, whereby it is regarded as the received wisdom that the birth mother is the legal mother and that the basis for that is in the 2014 judgment, when that is not actually the case with a more detailed reading of it. I suggest that I do that and that the Minister or his officials consider the rebuttals and take further advice from somebody from the Attorney General's office. This is a fundamental point and has considerable implications for situations in which a surrogate may change her mind or issues might arise between the point of the birth of the child and the granting of the parental order. We do not know at this point how long that period may be, and any number of issues could arise during it. That is why it is essential that we have clarity on the point about who has legal responsibility for the child.

The other thing that arises during that period is situations in which emergency treatment may be required and who has the decision-making around that. Again, they could be critical issues during that period. We need to address any ambiguity that is there, and there seems to be considerable ambiguity about legal rights during that period, until the court grants a parental order. They are issues that remain unaddressed. I would welcome the Minister's response on that.

Deputy Stephen Donnelly

I thank the Deputy for that. I ask her to send on the note she has and we will get her a response to it.

To the various-----

Deputy Róisín Shortall

The Minister might consider the rebuttals.

Deputy Stephen Donnelly

Yes. I will ask people who are better versed in constitutional law than I am to consider them.

The Deputy's amendment to amendment No. 155, essentially, if I understand it correctly, speaks to the provision which states that "a person shall not knowingly provide a technical, professional or medical service that is to give ... further effect to any agreement or other arrangement which purports to relate to a permitted international surrogacy, but does not in fact relate to a permitted international surrogacy". The Deputy seeks an exemption there. First, in subsection (5) of the proposed new section, we have an exemption with regard to anyone providing medical treatment to a pregnant woman, so that is part of it. I fully agree on that side of it. As regards the example the Deputy gave, I fully agree that we should not interfere with that, so if a D and C or any other medical treatment is required for the surrogate mother, that of course should not be interfered with. There can be no question of any ambiguity about that. That is why subsection (5) has the exemption in place. At the same time, we do want to make it clear that the non-permitted international surrogacies are not within the law and should not be facilitated. If, however, it came to giving required medical care to anybody, of course there would be no question. I might ask the officials to look at the Deputy's amendment. We can go back and test it. Essentially, we are trying to say there can be no question other than that the pregnant woman gets whatever medical treatment she needs at any point. Other than that, however, we want to make it clear that if it is a non-permitted surrogacy, the service should not be provided. I might ask-----

Deputy Róisín Shortall

Which services?

Deputy Stephen Donnelly

As per the section, that is, "a person shall not knowingly provide a technical, professional or medical service" for a non-permitted surrogacy. As an example-----

Deputy Róisín Shortall

That is exactly the point I am making. Where somebody engages in non-permitted arrangements, if that person has a medical need and an AHR professional needs to provide treatment for that medical need, they must be protected in those circumstances. The understanding from the proposals as they exist is that a medical professional who provided medical services in those circumstances could be liable for prosecution or other disciplinary measures and that they are not protected in providing that emergency treatment.

Deputy Stephen Donnelly

Let me take a look at it. We have a full exemption for the pregnant woman already, but let us test it. For example, if there were an embryo transplant from an intending parent in Ireland, that woman would not be the pregnant woman. If she were to need any follow-up medical care, there should obviously be no question about her receiving it. That may be an example of what the Deputy is talking about. Let us test it. We are trying to say that if it is a non-permitted surrogacy, we should not have lawyers or clinicians involved in getting on with the surrogacy anyway.

Deputy Róisín Shortall

Who, then, provides the service if AHR professionals are the people who would be best placed to provide medical treatment?

Deputy Stephen Donnelly

If it is non-permitted surrogacy, they should not be facilitating the surrogacy at all.

Deputy Róisín Shortall

It is not a question of facilitating the surrogacy; it is a question of providing necessary medical treatment for a person who has engaged in a non-permitted arrangement.

Deputy Stephen Donnelly

Yes, so let us test that. If someone has done something they should not have done but they need medical care, there can be no question of their not getting that medical care. We will take a look and see if that is fully safeguarded. It has been done from the perspective of the pregnant woman, the surrogate. That exemption is in, but maybe we need to add an exemption as per the conversation we are having in respect of the intending parent or parents as well.

Deputy Róisín Shortall

Nobody is arguing that non-permitted surrogacies should be facilitated, but if they occur and somebody needs medical treatment, that obviously has to be made available. There is a question mark over the existing provision.

Deputy Stephen Donnelly

The advice I have is that the wording around "effect or further effect to any agreement" is about progressing a surrogacy rather than responding to any medical care needs resulting from it, but we will test it to be absolutely sure.

Next is amendment No. 157. As to where we got to on this, I think we were broadly in agreement on taking a look and coming back potentially with a briefing session and-or note to the committee as to what the appropriate amount of time is.

From memory, I think it was five to seven weeks. We are looking at that. I think the Deputy had agreed to withdraw that amendment on the basis that we would come back to it. Similarly, on amendment No. 158, we had discussed that previously as well. My position at the time was that it is not a political or policy measure and is just medical and scientific advice, and the advice I had was to proceed with what we had. From memory, and I may be wrong, I think the Deputy had agreed to that on the last section. That is my memory of it.

Deputy Róisín Shortall

I do not think that is the case. I thought the Minister said he would have a look at it. We did not get clarification on that.

Deputy Stephen Donnelly

I will check. That is not my recollection, but maybe I did. If I did and it has not happened, I apologise. We will go and get it. If I am wrong on that, that is fine. I will take a look. I think we just agreed that the medical advice was to proceed with the version we had. I am more than happy to get the Deputy a note on it. Does she want me to get the officials to revert to her?

Deputy Róisín Shortall

Okay. Thank you. There is the other issue of who has the legal authority to make decisions about a child who is born during that period from birth up to the granting of a parental order where emergency medical treatment is required. Who has the authority on that?

Deputy Stephen Donnelly

I will ask Dr. Keegan to come in on that.

Dr. Edward Keegan

In that case, guardianship is granted at the time on the basis of a declaration made, so it would be made and properly witnessed, and the intending parents and the surrogate mother would then, essentially, have shared guardianship that would affect those kinds of decisions.

Deputy Róisín Shortall

Is that the case from birth?

Dr. Edward Keegan

It is at the time the declaration is made. The declaration comes before the parental order so that would take place as soon as possible, once it can be properly witnessed as per the requirements of existing law on such witnessing. Then, once that is made, there is shared guardianship until the point where the parental order is granted.

Deputy Róisín Shortall

What does the declaration entail in terms of potential delays?

Dr. Edward Keegan

The surrogate mother and the intending parents, essentially, would have shared guardianship in that case from the point of making the statutory declaration that will be prescribed under the legislation.

Deputy Róisín Shortall

My question is what is entailed in making the declaration. Could there be a delay in that declaration being made?

Dr. Edward Keegan

There should not be a delay in it being made. They do not need it to be deposited anywhere. It is just that it is made and properly witnessed. It can be done as soon as possible, which is why the legislation has been crafted to allow for that to happen in a short timespan.

Deputy Róisín Shortall

Presumably, that requires the agreement of the surrogate.

Dr. Edward Keegan

Yes, the surrogate mother would have to agree to that. That would be part of the consent process.

Deputy Stephen Donnelly

Dr. Keegan might explain the timing.

Dr. Edward Keegan

It would be post birth that the declaration is made and, then, from 28 days to six months after that they can apply for the parental order. That is a court process but, prior to that, there is the shared guardianship that would arise on the basis of the declaration being made.

Deputy Róisín Shortall

Why did the Department not opt for the shared guardianship of the three people concerned from birth rather than there being a delay and another process prior to the parental order?

Deputy Stephen Donnelly

My understanding is that the shared guardianship is at birth.

Deputy Róisín Shortall

Does it not require a declaration?

Dr. Edward Keegan

It requires a declaration. That declaration has to be made in relation to the child who is being born, and that is why it has to be made at that point, after the fact. There are minimal requirements around it, in that those involved do not need to go anywhere and it does not need to be deposited anywhere; it is just that it is made with the intending parents and the surrogate mother, and shared guardianship then arises.

Deputy Róisín Shortall

Okay, but it requires the agreement of all parties to that.

Dr. Edward Keegan

Yes.

Deputy Róisín Shortall

My question is whether the Department looked at automatic shared guardianship from the birth of the child, based on the pre-birth agreement that is there.

Deputy Stephen Donnelly

I might ask the official from the Department of Justice to give chapter and verse on this, if that is okay.

Ms Tracy O'Keeffe

The provisions in regard to guardianship were drafted to be consistent with the existing provisions of the Guardianship of Infants Act 1964 in regard to children whose birth parents are not married to each other. Under the 1964 Act, at present, the birth mother is automatically a guardian of the child to whom she gives birth. In an opposite-sex couple situation, if the parents are not married, the father does not automatically become a guardian from birth unless certain requirements are met in regard to cohabitation. One of the mechanisms by which the father can become a guardian is by way of a statutory declaration. The Children and Family Relationships Act amended the 1964 Act to make provision in regard to the guardianship of donor-conceived children.

What is being proposed in regard to these amendments is intended to fit in and be consistent with the existing statutory framework in that the surrogate mother, being the birth mother, has guardianship immediately from birth and that is not displaced until the parental order is made removing her as a parent. She remains a guardian of the child until the parental order is made. The statutory declaration procedure that the amendments propose will enable her, together with the intending parents, to make a statutory declaration that confers guardianship on the intending parents together with the surrogate mother, so the three of them jointly can, in the event that urgent decisions need to be made about the child's care or medical issues, make such decisions together. However, it is necessary that the surrogate mother remains a guardian because she remains the legal mother of the child until the parental order is made.

Deputy Róisín Shortall

The problem is the interpretation of the 2014 Supreme Court judgment, and what everybody is assuming is the case, which is that the birth mother is the legal mother and there is a strong legal basis for that. My contention is that there is not.

I would also say that given the progress and the advances that have been made in this whole area, it does not make sense to base the legal provisions on 1964 legislation and circumstances that are entirely different. I will leave it at that. I cannot understand why the Department did that. I do not understand why the three parties to the pre-birth agreement would not be assumed in law to be the legal guardians from birth, and why there is this separate stage in the process where a declaration is needed, given there is potential for things not to go according to the agreement. It strikes me that it would have made much more sense to do it that way and to have automatic guardianship based on the agreement, which is a legal agreement. The idea of quoting 1964 legislation does not make much sense. I will leave it at that.

Deputy Neasa Hourigan

I echo the comments from my colleagues on the importance of the day. I recognise the amount of work that went into this Bill from the Department and the special committee.

I want to stay on the previous topic. We need to have clarity about when that piece of documentation might be signed or that declaration might be made. What I am inferring from what the witnesses have said is that it is made at birth, when the child is in the world, shall we say. In a medical emergency, are we suggesting that we are asking a surrogate to sign a document while perhaps in theatre?

This is what I am imagining from what the Minister is describing. While I cannot speak for everybody, I am certainly not suggesting that we remove the surrogate as guardian at the time. Rather, I am suggesting that we include the other people as guardians. We need to be very clear about when the declaration should be signed. In this whole process, we have recognised that a surrogate needs time to recover after birth. In this regard, a medical procedure can in some cases be very complex. Are we suggesting that somebody in a bed will be asked to sign a sworn document so others involved can make very important medical decisions about a child that is theirs? That requires clarity. It is not about removing the surrogate from the guardianship process, or doing anything like that, but ensuring that from the second the child comes into the world, at which point he or she might need emergency care, the intended parents will have a guardianship right. We need clarity on what exactly will happen in an emergency.

The other item I want to raise concerns amendment No. 167 as it relates to past international surrogacies. I am referring to the requirements concerning information for surrogates and intending parents, including on where the surrogate parent was residing, for example. I absolutely accept that the requirements will apply prospectively; however, with regard to a retrospective provision, it would seem unwise not to include judicial discretion. In some cases, the ability to retrospectively provide evidence of where somebody resided might be incredibly difficult. There are now people raising children who were born through surrogacy many years ago. Trying to find evidence of where someone was living in, say, India a decade ago, or Ukraine, where there has been war, could be problematic. Finding records where record-keeping might have been disrupted seems incredibly difficult. Therefore, could we have clarity on judicial discretion whereby the judicial system could say it appreciates that records are not available and accepts the declaration by the surrogate and intending parents?

Deputy Stephen Donnelly

I thank Deputy Hourigan for her three questions. On the question on who the guardian is at birth and the signing of the forms, I want to be very clear. Regardless of the policy position coming out of the legislation, there is no ambiguity about the current proposal. The current proposal reflects exactly what has been happening in Ireland for several years where the parents are not married, as one of my officials has said. The legal situation is very clear. I accept that Deputy Shortall has legal advice contrary to that, but the legal advice I have is very clear. The birth mother is the guardian at birth. Regularly, a declaration is signed on the same day as the birth such that the father, who is not married to the mother, can become the guardian.

Deputy Neasa Hourigan

Signed by the mother, the person giving birth.

Deputy Stephen Donnelly

It is signed by both. That is the law today. That happens all the time and, to the best of my knowledge, it is not being challenged. My understanding, on which I am open to correction, is that it has not been legally challenged. I am certainly not aware of anyone raising operational challenges concerning it. It has been the law for several years and it appears to be working. The proposal is that we do the same thing in this Bill.

Deputy Neasa Hourigan

I do not mean to cut across the Minister but can he see how it might be problematic to ask intending parents to sign a document in an emergency, such as where somebody who has given birth by C-section is in an operating theatre? I believe it is problematic. With the greatest of respect, saying the law has not been challenged means it has not been challenged yet.

Deputy Stephen Donnelly

What I said was to the best of my knowledge. I can see why intending parents would prefer to be the joint guardians at birth. Things can go catastrophically wrong, unfortunately.

Deputy Neasa Hourigan

In some cases, the mother might be unconscious.

Deputy Stephen Donnelly

Could I just answer the question? I understand what the Deputy is saying but I am saying that what she has outlined has been happening for several years. A father who is not a guardian and whose partner may be in difficulty may very much want to be the guardian. The awful circumstances we are referring to have been arising for several years, unfortunately. In the drafting of this Bill, it was not flagged that the current situation is problematic and needs to be remedied. It has not been brought to my attention. However, we will look very carefully at the advice Deputy Shortall has. From a policy perspective, I understand why intending parents would want to be guardians from birth. I get it and we all understand that. I will ask the officials to take a further look based on this conversation. Let us reflect on it and see where we go with it.

On amendment No. 167, what was the issue the Deputy was raising?

Deputy Neasa Hourigan

I asked about the retrospective statement regarding the circumstances of the surrogate at the time. It might be difficult retrospectively.

Deputy Stephen Donnelly

We are not on the section on retrospection yet. I was going to raise the matter when we got to it. I have examined the proposal in the Bill and am not satisfied with it as it stands. We could deal with it when dealing with the section on retrospection but, seeing as it has been raised, I will address it now, with the permission of the Chair. Many parents looking for retrospective parental orders are concerned about this matter.

The argument on judicial discretion being included but not being paramount to everything else is one we are considering in respect of future surrogacies. Essentially, it entails a moral hazard argument. We have debated this, and it was previously accepted on Committee Stage that there is a genuine moral hazard argument. While the best-interest-of-the-child test is absolutely part of it, it does not supersede all the other elements. The proposal in the legislation as it stands is that the same provision would apply retrospectively. I am not comfortable with that because the moral hazard argument does not apply retrospectively. It cannot, so I am asking my officials to determine whether the point on paramountcy can be applied regarding retrospective parental orders.

There is an additional aspect that we need to consider, namely the period between the commencement of the retrospective parts of the legislation and the prospective parts. With regard to the setting up of AHRRA, there is an interim period. My view on that is that the retrospective rules should apply for the interim period; otherwise, we would have three separate periods which could be difficult for intending parents to navigate. For the interim period, the moral hazard argument does apply because it is about things people are going to do. We will come back to this. I was going to signal, when we got to the relevant section, that I would be asking officials to take a further look at the retrospection aspect on the basis that moral hazard cannot apply. Prospectively, it has to apply. In the interim period, it probably also needs to apply. However, the interim period would have fewer restrictions than the prospective period. That is the thinking on it.

Deputy Neasa Hourigan

I thank the Minister.

Deputy Bernard J. Durkan

With regard to the need for an intermediary, who proposes and chooses the intermediary, subject to debate, discussion and agreement?

What qualifications should the intermediary have in light of the different situations that might arise?

Deputy Stephen Donnelly

That matter is being left to the intending parents.

Deputy Bernard J. Durkan

Should there not be guidelines as to the qualifications the intermediary should have? Should legal qualifications be required? Should there be a qualification in child psychology? The child is an interested party. Family law issues will come up again and again. Would it be better to lay down basic guidelines? A person who would be totally unsuitable in certain situations could become an intermediary. Would it not be better to forestall any such situation by stating that the intermediary must have a qualification in sociology, law, medicine or whatever, or in all of those disciplines?

Deputy Stephen Donnelly

Where regulatory authorities are in place, yes. The AHRRA will look to that. As to the skill sets of those in the agency and whether they are specialists in child psychology, fertility, the law or whatever, that is a matter for the intending parents. However, amendment No. 147 relates to section 77, subsection (2)(f) of which refers to:

... the law of the jurisdiction relating to persons acting as intermediaries (if any) in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such intermediaries and the nature and degree of such oversight.

It is up to the country concerned and, to an extent, the parents. If the country has a regulatory authority, that authority will take note of that.

Deputy Bernard J. Durkan

Does that mean the country of the surrogate or the donor? Does it refer to the jurisdiction of the surrogate mother?

Deputy Stephen Donnelly

Yes, the jurisdiction of the surrogate mother.

Deputy Bernard J. Durkan

The donor has no particular rights in that situation or in any situation that arises in that regard.

Deputy Stephen Donnelly

The donor would have signed consent prior to it, waiving any such rights.

Deputy Bernard J. Durkan

What about the change of mind?

Deputy Stephen Donnelly

I will ask Dr. Keegan to give chapter and verse on that.

Dr. Edward Keegan

When it comes to the donor, they would have a right to revoke consent, but only up until the point of embryo formation. At that point, they would no longer have the ability to revoke consent. They would sign a consent at the time of making the donation to say they are not a parent of any child born as a result of the procedure.

Deputy Bernard J. Durkan

Regarding the right to revoke, could a change of mind result in an action for breach of contract being brought against the person who has changed their mind?

Dr. Edward Keegan

They have the right to revoke under the legislation up to that point. Thereafter, that right does not exist. As a result, it would not be a breach of contract. It would simply be that they are exercising their right up to the point when it is no longer possible to revoke.

Deputy Bernard J. Durkan

There could be three, four or any number of jurisdictions involved. Is there not a labyrinth in such a scenario? Which jurisdictional requirements prevail in that situation? Who decides that?

Dr. Edward Keegan

If it relates to the surrogacy, that would take place in one jurisdiction. Except in exceptional circumstances, the transfer and surrogacy would be carried in the jurisdiction where the birth would take place so as to minimise any cross-border aspect. You could see donations from another jurisdiction, but those donations would have to have the same consent required under the legislation at the time they are being used by the clinic in the surrogacy jurisdiction.

Deputy Bernard J. Durkan

I would hate to have to decide some of these things. Where there is no agreement and it comes down to legal debate in court, how does the legislation cover each party? How is it intended to cover rights and entitlements? If one party won the national lottery - not in this jurisdiction but in a jurisdiction where there is a meaningful lottery - what would happen in relation to an entitlement, retrospective or otherwise, that might change the whole scene? Large amounts of money change scenes. Is there any fail-safe provision in the legislation to clearly identity to whom the benefit of the entitlement goes? Sorry for asking these ones, but some of these have come up before.

Deputy Stephen Donnelly

I am trying to understand the question - if somebody wins the lotto-----

Deputy Bernard J. Durkan

If the intending parents win the national lottery, receive an inheritance or whatever, how does that affect the surrogate mother in the event that somebody who lives in a jurisdiction which, in comparison with that of the intending parents is poor and who feels it would be only correct and proper to in some way benefit from this situation, notwithstanding the fact that-----

Deputy David Cullinane

There is a one in 2 million chance of winning the lotto.

Deputy Stephen Donnelly

Even if it happened, that would be a commercial surrogacy. It would not be allowed. The courts would not grant the parental order because essentially that would be, rightly or wrongly, a direct payment contravening the Act. The intending parents would be prohibited from doing that.

Deputy Bernard J. Durkan

From winning the lottery.

Deputy Stephen Donnelly

Not from winning the lottery, but from giving a payment to the surrogate mother. That would be defined as a commercial surrogacy.

Deputy Bernard J. Durkan

I am not talking about the intending parents giving a payment to the surrogate mother. The surrogate mother could live in a poor jurisdiction and feel unfairly treated in an international surrogacy agreement. We around this table might also feel she had been unfairly treated. Should there not be a provision for certain extreme circumstances, for example?

Deputy Stephen Donnelly

No, because you are opening the door. That is commercial surrogacy. We have a pretty binary view on that. Commercial surrogacy will not be allowed, regardless of the merits of sharing inherited wealth or whatever. If it is done in respect of the surrogacy, the courts will not grant the parental order

Deputy Bernard J. Durkan

What if the parental order was already granted?

Deputy Stephen Donnelly

Then the surrogate has no further role. She might ask for money afterwards, but it would be outside of any legal agreement if the parental order is already granted.

Deputy Bernard J. Durkan

This is my final question in respect of the issue of jurisdiction.

These cases will come up. We can be absolutely certain of it. They have come up already. The chances of them coming up again are fairly strong. In the event of there being litigation in respect of a matter that cannot be resolved, that litigation will take place in the jurisdiction of the intending parents. Am I right?

Deputy Stephen Donnelly

Will the Deputy repeat that?

Deputy Bernard J. Durkan

If litigation takes place, will the jurisdiction within which it will be contested be the home jurisdiction of the intending parents, the international courts or-----

Deputy Stephen Donnelly

The officials will correct me if I am not accurate, but my understanding is that it depends. If it is a matter of Irish law, then it will be dealt with through the Irish courts. Let us say, however, that a surrogate in Ukraine, India or the US decides to withdraw from the agreement and keep the baby, my understanding is that there is nothing the Irish courts could do. There is really nothing the intending parents could do either. The part of the contract that is legally enforceable is around reasonable expenses and so forth. My understanding - the officials will come in if I am incorrect on this - is if we have a situation where the surrogate mother decides she is keeping the baby, and is living anywhere, including Ireland, that is her right. It is not enforceable to take the child from her because of a pre-authorisation or pre-agreement.

Deputy Bernard J. Durkan

Having changed her mind.

Deputy Stephen Donnelly

In which case, the jurisdiction that will look at that will be where the child is.

Deputy Bernard J. Durkan

Where the child is.

Deputy Stephen Donnelly

It could be a domestic surrogacy, in which case it would be looked at by the Irish courts. If it is international surrogacy, it would be looked at by the courts wherever the child is.

Deputy Róisín Shortall

Even though there is no genetic link.

Deputy Stephen Donnelly

To the surrogate mother, yes.

Deputy Róisín Shortall

That is the problem.

Deputy Bernard J. Durkan

I will not delay the proceedings any further.

Deputy David Cullinane

I will make one quick point. I welcome the fact that the Minister will reconsider automatic guardianship at birth for the intending parents. For the purpose of clarity, am I right in saying that he went with the current option because, as he said, there has not been any difficulty with it? He did not go with the option of automatic guardianship at birth only because the current system is working. Is there any legal reason automatic guardianship at birth was not considered? Is there any legal impediment to it? Is it something that can be done? The Minister said he will reflect on it and come back. Was it discussed as one of the options? Was it just that the current system is working okay and we will replicate it and go with that. Is that how he landed at it?

Deputy Stephen Donnelly

I will ask my official to give some input on that.

Ms Tracy O'Keeffe

The provisions on guardianship were drafted on the basis, which is the thread that runs throughout the Bill and amendments, that intending parents do not become the legal parents of the child until the parental order is made-----

Deputy David Cullinane

I understand that.

Ms Tracy O'Keeffe

That is the rationale for the way the guardianship provisions were structured. The provisions put forward in the amendments were seen as a suitable solution to address the gap between the birth of the child and the making of the parental order, as the Minister said. It is a fact that the intending parents are not the legal parents of the child at the point when the child is born.

Deputy David Cullinane

My question is different. Was the option of automatic guardianship at birth for the intending parents considered? If it was considered, is there any legal reason it cannot be done? If the Minister is saying he will re-examine this, it would be useful for us at this point to know whether there is any legal impediment. First of all, was automatic guardianship even looked at as an option? If the answer to that is yes, then why was it not considered as the option? Is there any legal reason as to why it cannot be done?

Ms Tracy O'Keeffe

It comes back to the question of parentage. As the Minister said, we will look at this again in consultation with the Attorney General's office, taking on board the points made about the-----

Deputy David Cullinane

Was it considered? That is my point. Was automatic guardianship considered? If it was considered, was any legal advice given, up to now, that this cannot be done for legal reasons? It is okay if it was not considered. That is fine. We can look at it. Was any legal reason given for why this cannot be done?

Deputy Róisín Shortall

The assumption was that the 2014 Supreme Court judgment set down the legal scenario that the birth mother is the legal mother.

Deputy David Cullinane

I understand that, but we are talking about guardianship.

Deputy Róisín Shortall

If that is the assumption the Department made, then it did not consider that. What should have been considered is automatic joint guardianship between the intending parents and the birth mother.

Deputy David Cullinane

That is what I meant. I am not saying that there be no guardianship for the mother. I am talking about joint guardianship for all three individuals, which is what is part of this declaration. What is being asked for is automatic joint guardianship. I am just asking whether there is any legal reason that cannot be done at birth.

Deputy Stephen Donnelly

We will take a look at it. Regardless of the proposal here, it has been a very useful discussion. Let us take a look and we will come back with the legal position.

Deputy David Cullinane

That is fine.

Deputy Stephen Donnelly

Certainly, I am not having anything flagged to me right now that says there is a glaring constitutional or legal conflict. We will take a look and explore it with the Attorney General.

Deputy Colm Burke

Where there is surrogacy and persons have care of the child but have not followed up on the paperwork in any way whatsoever for a number of years, is that adequately dealt with under the proposed legislation?

Deputy Stephen Donnelly

If no parental order is made within a certain period, the AHRRA will act. I will ask the officials to get the Deputy a more detailed note on it.

Deputy Colm Burke

The reason I raise it is that I was involved in a case that ended up in the High Court concerning people who had care of a child for more than seven years. The circumstances were unusual, but it took us quite a long time to try to resolve the issue because we could not get the natural mother to sign any documentation. We had a situation, for instance, where the birth was not even registered until seven years later. Is there adequate provision in the legislation to deal with a scenario such as that?

Deputy Stephen Donnelly

There is an exemption for exceptional circumstances where the timeframe can be extended.

Amendment agreed to.

An Cathaoirleach

This is probably a good time to break. We will suspend for five minutes.

Sitting suspended at 11.08 a.m. and resumed at 11.16 a.m.

Deputy Stephen Donnelly

I move amendment No. 146:

In page 64, between lines 29 and 30, to insert the following:

“Application

76. For the avoidance of doubt, nothing in this Part shall be construed to relieve any person involved in any capacity in a surrogacy agreement (SJ) from compliance in all respects with the law of the surrogacy jurisdiction concerned relating to surrogacy in that jurisdiction.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 147:

In page 64, between lines 29 and 30, to insert the following:

“Approval of surrogacy jurisdiction

77. (1) The AHRRA may, after consultation with the Minister and the Minister for Foreign Affairs and having regard to the matters specified in subsection (2) for the purposes of this subsection, by order approve a surrogacy jurisdiction specified in the order, with effect from a date specified in the order for the purpose, as a jurisdiction in which an international surrogacy may be undertaken if the AHRRA considers that such approval is appropriate in all the circumstances of the case.

(2) The matters which the AHRRA shall have regard to for the purposes of deciding whether or not to approve under subsection (1) a surrogacy jurisdiction as a jurisdiction in which an international surrogacy may be undertaken are as follows:

(a) the law of the jurisdiction relating to surrogacy, including whether or not that law permits a commercial surrogacy referred to in section 89;

(b) without prejudice to the generality of paragraph (a), the protections afforded under the law of the jurisdiction to children that may be born as a result of AHR treatment (SJ) in the event of any such children not receiving adequate care and protection;

(c) the ability of the AHRRA to monitor compliance with the provisions of this Part of an international surrogacy undertaken in the jurisdiction;

(d) any civil or military activities, or potential civil or military activities, relating to the jurisdiction that may present a potential significant risk of harm to any person participating, in any capacity, in an international surrogacy undertaken in the jurisdiction;

(e) the law of the jurisdiction relating to medical professionals undertaking surrogacy in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such professionals and the nature and degree of such oversight;

(f) the law of the jurisdiction relating to persons acting as intermediaries (if any) in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such intermediaries and the nature and degree of such oversight;

(g) the extent to which the law of the jurisdiction—

(i) provides for the rights of pregnant women, including surrogate mothers, as regards their health, privacy and bodily autonomy,

(ii) makes no distinction, as regards the rights referred to in subparagraph (i), between pregnant women who are not surrogate mothers and pregnant women who are surrogate mothers, and

(iii) is enforced as regards the rights referred to in subparagraph (i).

(3) Subject to subsection (4), the AHRRA may, after consultation with the Minister and the Minister for Foreign Affairs, by order, revoke the approval under subsection (1) of a surrogacy jurisdiction specified in the order, with effect from a date specified in the order for the purpose, if, at a subsequent time, the AHRRA considers that, if that jurisdiction were not so approved and having regard to the matters specified in subsection (2) for the purposes of subsection (1), such approval would not be appropriate in all the circumstances of the case.

(4) The revocation under subsection (3) of the approval of a surrogacy jurisdiction under subsection (1) shall not affect an international surrogacy, undertaken in that jurisdiction, the subject of a surrogacy agreement (SJ) that has been approved under section 86 before the date, specified in the order concerned under subsection (3), on which that revocation takes effect.

(5) For the avoidance of doubt, it is hereby declared that the revocation under subsection (3) of the approval under subsection (1) of a surrogacy jurisdiction shall not be construed to prevent that jurisdiction from again being so approved.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 148:

In page 64, between lines 29 and 30, to insert the following:

“CHAPTER 2

General provisions relating to international surrogacy

Definition – Chapter 2

78. In this Chapter, “AHR information document (SJ)”, in relation to a type of AHR treatment (SJ), means the document published on the AHRRA’s website pursuant to section 79(1) and that relates to that type of AHR treatment (SJ).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 149:

In page 64, between lines 29 and 30, to insert the following:

“AHR information document (SJ)

79. (1) Subject to subsection (2) and section 80, where the AHRRA approves under section 77(1) a surrogacy jurisdiction as a jurisdiction in which an international surrogacy may be undertaken, it shall, on or before the date specified in the order concerned under section 77(1) as the date on which such approval shall take effect, prepare and publish on its website a document, for each type of AHR treatment (SJ) and in the official language (or one of the official languages) of that jurisdiction and, if that language is not English, also in English and Irish, setting out the basic information that it is satisfied that a person seeking, or potentially seeking, such type of AHR treatment (SJ) ought to know about such treatment.

(2) Where the official language (or one of the official languages) of an approved surrogacy jurisdiction is not English, the AHRRA may publish an AHR information document (SJ) in English and Irish only if it is satisfied that the document is relevant only to the intending parents (or, in the case of a single intending parent, that intending parent) concerned.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No.150:

In page 64, between lines 29 and 30, to insert the following:

“Provisions supplementary to section 79

80. (1) This section applies without prejudice to the generality of section 79.

(2) The AHR information document (SJ) for a type of AHR treatment (SJ) to be provided pursuant to a surrogacy agreement (SJ) shall inform the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) involved of the following matters in relation to the law of the State:

(a) that the surrogate mother will be the mother of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement;

(b) that the surrogate mother’s husband (if any) under a subsisting marriage will not be presumed to be the father of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement;

(c) that the intending parents (or, in the case of a single intending parent, that intending parent) will not, without a parental order, be the parents (or, in the case of a single intending parent, the parent) of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement other than in the case of an intending parent who provided the sperm used in such treatment;

(d) where a relevant donation (SJG) will be used to create the embryo to be transferred to the surrogate mother pursuant to the agreement, the relevant donor (SJG) will not be a parent of the child;

(e) that the information specified in section 95(1) will be recorded in the National Surrogacy Register in respect of—

(i) the surrogate mother,

(ii) the intending parents (or, in the case of a single intending parent, that intending parent),

(iii) any child born as a result of AHR treatment (SJ) provided pursuant to the agreement, and

(iv) where a relevant donation (SJG) was used to create the embryo that was transferred pursuant to the agreement, the relevant donor (SJG);

(f) that any person born as a result of AHR treatment (SJ) provided pursuant to the agreement may, in accordance with the provisions of Chapter 3—

(i) access the information pertaining to each party to the agreement recorded on the National Surrogacy Register, and

(ii) seek to contact any party to the agreement;

(g) that, where a relevant donation (SJG) will be used to create the embryo to be transferred to the surrogate mother pursuant to the agreement, the relevant donor (SJG) is entitled to obtain from the National Surrogacy Register the information specified in section 102(2);

(h) that the intending parents (or, in the case of a single intending parent, that intending parent) have (or has) an obligation under section 95(3) to cause the information specified in that section to be given by the AHR treatment provider (SJ) to the AHRRA;

(i) having regard to the child’s right to know his or her origins, that it is desirable that—

(i) the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) keep updated, in accordance with section 107, the information in relation to him or her that is recorded on the National Surrogacy Register, and

(ii) the intending parents (or, in the case of a single intending parent, that intending parent) inform the child, at an appropriate age, that he or she was born as a result of AHR treatment (SJ) provided pursuant to the agreement;

(j) the right of the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) to revoke, or revoke and replace, his or her section 83 consent.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No.151:

In page 64, between lines 29 and 30, to insert the following:

“Safety of children - AHRRA

81. (1) The AHRRA shall not approve under section 86 a surrogacy agreement (SJ) unless it is satisfied that the relevant person, and each other relevant person, does not present a potential significant risk of harm or neglect to—

(a) any child that may be born as a result of AHR treatment (SJ) to be provided pursuant to the agreement, or

(b) any other child.

(2) (a) Subject to paragraph (b), the AHRRA shall, for the purposes of subsection (1), make a request in writing to each relevant person to complete and submit to the AHRRA within the period specified in the request (being a period reasonable in all the circumstances of the case), a return in the specified form (in this section referred to as a “section 81 return”) attached to the request.

(b) Subject to paragraph (c) and subsection (6), the Minister—

(i) shall, as soon as is practicable after the commencement of this subsection, by regulations specify the information, or information falling within a class of information specified in the regulations, that a section 81 return may require a relevant person, or a relevant person falling within a class of relevant persons specified in the regulations, to provide, and

(ii) may by regulations specify the circumstances (if any) in which such information may be further disclosed by the AHRRA in addition to further disclosures required by law.

(c) Where the Minister makes regulations under paragraph (b), he or she shall, in addition to having regard to the other provisions of this Act, have regard to the following:

(i) that, in determining the information to be specified, the paramount consideration is the safety of any child referred to in subsection (1);

(ii) that the information sought needs to be appropriate and proportionate to satisfying the AHRRA as referred to in subsection (1);

(iii) that any information sought which may reasonably be regarded as sensitive information is protected from any unnecessary further disclosure by the AHRRA except where such further disclosure is required by law.

(d) The AHRRA shall, in specifying different forms of section 81 returns, ensure that the forms are consistent with the regulations made under paragraph (b).

(3) Subject to subsection (4), where the AHRRA is not satisfied after having assessed the section 81 returns concerned, as referred to in subsection (1), the AHRRA shall, as soon as is practicable after the expiration of the period concerned referred to in subsection (2)(a), by notice in the specified form (in this section referred to as a “section 81 notice”) given to each relevant person, state the reasons why the AHRRA is not so satisfied.

(4) For the purposes of subsection (3), the AHRRA may also assess information obtained otherwise than from a relevant person.

(5) The AHRRA shall retain the original or a copy of—

(a) a section 81 return,

(b) a section 81 notice,

(c) information referred to in subsection (4) which is in writing, and

(d) any note made in writing, by the AHRRA, of information referred to in subsection (4) which is not in writing,

for not less than 30 years after receiving the return, issuing the notice, obtaining the information or making the note, as the case may be.

(6) On and after the establishment day, the Minister shall not make regulations under subsection (2) except after consultation with the AHRRA.

(7) In this section, “relevant person”, in relation to any child that may be born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ), means—

(a) in the case of two intending parents, each of the parents,

(b) in the case of a single intending parent, that parent and the parent’s spouse, civil partner or cohabitant (if any), and

(c) in the case of a surrogate mother, that mother and her spouse, civil partner or cohabitant (if any).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No.152:

In page 64, between lines 29 and 30, to insert the following:

“AHR counselling (SJ)

82. The AHRRA shall not approve under section 86 a surrogacy agreement (SJ) attached to a section 86 application unless it is satisfied that AHR counselling (SJ) has been given to the intending parents (or, in the case of a single intending parent, that intending parent) and the surrogate mother concerned.” .

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No.153:

In page 64, between lines 29 and 30, to insert the following:

“Consent

83. (1) Subject to subsection (2), the AHRRA shall not approve under section 86 a surrogacy agreement (SJ) attached to a section 86 application unless it is satisfied that consent in the specified form (in this Part referred to as “section 83 consent”) to the provision of AHR treatment (SJ) (including every stage of such treatment) pursuant to the agreement to a person has been given by—

(a) that person, and

(b) each relevant person.

(2) A person’s section 83 consent shall not be considered valid unless—

(a) it was given voluntarily,

(b) subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, the person had the capacity to give such consent at the time it was given,

(c) section 82 has been complied with, and

(d) it can be revoked, or revoked and replaced, by the person giving the consent.

(3) In this section, “relevant person”, in relation to a person seeking AHR treatment (SJ), means, if such person is an intending parent, the other intending parent (if any).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 154:

In page 64, between lines 29 and 30, to insert the following:

“Provisions supplementary to section 83

84. (1) This section applies without prejudice to the generality of section 105.

(2) The specified form of a section 83 consent shall require the intending parents (or, in the case of a single intending parent, that intending parent) and the surrogate mother to—

(a) confirm that he or she has received the AHR information document (SJ) concerned,

(b) confirm that he or she has received the AHR counselling (SJ) required under section 82,

(c) confirm that he or she has received the legal advice required by section 94

(d) consent to the recording of information required under section 95 and

(e) confirm that he or she understands that a person born as a result of AHR treatment (SJ) provided pursuant to the surrogacy agreement (SJ) may, in accordance with the provisions of Chapter 3—

(i) access the information specified in section 95(1), or

(ii) seek to contact any or all parties to the surrogacy agreement.

(3) The specified form of a section 83 consent shall, where a relevant donation (SJG) is proposed to be used to create an embryo to be transferred pursuant to a surrogacy agreement (SJ), require the relevant donor (SJG) to—

(a) confirm that he or she understands that, under the law of the State—

(i) he or she shall not be a parent of any child born as a result of such use of such donation,

(ii) the information specified in section 95(1) in relation to him or her shall be recorded on the National Surrogacy Register,

(iii) the child, when he or she becomes an adult (AHR), may access the information specified in section 105(2) and seek to contact the donor,

(iv) the information that the donor is entitled to obtain from the National Surrogacy Register is restricted to the information specified in section 103(2),

(v) having regard to the child’s right to know his or her origins, it is desirable that the donor keep updated, in accordance with section 107, the information in relation to him or her that is recorded on the National Surrogacy Register, and

(vi) he or she has the right to revoke, or revoke and replace, such consent at any stage before the formation of the embryo,

(b) consent to the recording of information required under section 95(1), and

(c) confirm that he or she understands that a person born as a result of such use of such donation may, in accordance with Chapter 3—

(i) access the information specified in section 95(1) in respect of the donor, and

(ii) seek to contact the donor.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 155:

In page 64, between lines 29 and 30, to insert the following:

“CHAPTER 3

Permitted international surrogacy

Permitted international surrogacy

85. (1) The surrogacy the subject of a surrogacy agreement (SJ) is a permitted international surrogacy only where the surrogacy is an international surrogacy that has been approved under section 86 by the AHRRA before any AHR treatment (SJ) has been provided pursuant to the agreement and the surrogacy complies with all of the following:

(a) the surrogacy jurisdiction is an approved surrogacy jurisdiction;

(b) the surrogate mother meets the requirements specified in section 87;

(c) the intending parents together as a couple meet (or, in the case of a single intending parent, that intending parent meets) the requirements specified in section 88;

(d) the AHR treatment provider (SJ) gives an undertaking in the specified form, before the section 86 application is made—

(i) that the AHR treatment (SJ) to be provided pursuant to the agreement will, upon each occasion on which it is provided, only involve the transfer of a single embryo to the surrogate mother,

(ii) where an embryo proposed to be transferred pursuant to the agreement was or will be created using a relevant donation (SJG), that the provider will not effect the transfer unless the section 83 consent of the relevant donor (SJG) permits the use of such donation pursuant to such an agreement, and

(iii) that the provider will not disclose the personal details of a relevant donor (SJG) referred to in subparagraph (ii) to the intending parents (or, in the case of a single intending parent, that intending parent);

(e) it is not a commercial surrogacy agreement (SJ) referred to in section 89;

(f) the personal details of the intending parents (or, in the case of a single intending parent, the personal details of that intending parent), the surrogate mother, the relevant donor (SJG) (if any) and any child born as a result of AHR treatment (SJ) provided pursuant to the agreement are recorded in accordance with sections 95 and 101;

(g) without prejudice to the generality of section 76, the agreement meets all the requirements for a surrogacy agreement to be undertaken in the surrogacy jurisdiction concerned.

(2) Subject to subsections (4) and (5), a person shall not knowingly provide a technical, professional or medical service that is to give effect or further effect to any agreement or other arrangement which purports to relate to a permitted international surrogacy, but does not in fact relate to a permitted international surrogacy.

(3) Without prejudice to the generality of subsection (2), a person shall not—

(a) knowingly participate in any agreement or other arrangement referred to in that subsection, or

(b) induce or attempt to induce another person to participate in any such agreement or other arrangement.

(4) For avoidance of doubt, neither subsection (2) nor (3) shall be construed as prohibiting—

(a) the provision of consular assistance and services, including the issuing of travel documents, by or on behalf of the State, or

(b) the giving, by a legal practitioner or legal practitioner (SJ), of legal advice in relation to any agreement or other arrangement—

(i) referred to in subsection (2), or

(ii) which is the equivalent, in another jurisdiction, of any such agreement or arrangement.

(5) Subject to section 76, nothing in this section shall be construed as prohibiting a person from providing medical treatment to a woman after she is pregnant if the person is, at the time of providing such treatment, lawfully entitled to provide the treatment in the State.”.

Deputy Róisín Shortall

I move amendment No 1:

In subsection (4), after paragraph (b)(ii), to insert the following:

“ (c) the giving, by a medical practitioner or medical practitioners (SJ), of medical advice in relation to any agreement or other arrangement.”.

The Minister has said he will consider that for Report Stage and I am happy to withdraw my amendment on that basis.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 156:

In page 64, between lines 29 and 30, to insert the following:

“Approval of surrogacy agreements (SJ)

86. (1) Intending parents (or, in the case of a single intending parent, that intending parent) shall not participate in a surrogacy agreement (SJ) other than a surrogacy agreement (SJ) that has been approved under subsection (3).

(2) (a) Intending parents (or, in the case of a single intending parent, that intending parent) may make an application in the specified form (in this Part referred to as a “section 86 application”), accompanied by the specified fee, to the AHRRA for the AHRRA’s approval under subsection (3) of the completed surrogacy agreement (SJ) attached to the application.

(b) Without prejudice to the generality of section 105—

(i) the specified form of a surrogacy agreement (SJ) shall require, in the case of two intending parents, each of them to indicate that he or she consents, should the agreement be approved under this section but he or she dies after the embryo transfer concerned has been effected but before the section 98 application (if any) concerned has been made, to the surviving intending parent making such application as a single intending parent, and

(ii) the specified form of a section 86 application shall require—

(I) such evidence as is specified in the form as is reasonably required by the AHRRA to enable it to determine whether or not the provisions of sections 82, 83, 84(2), 84(3), paragraphs (b), (c), (d), (e) and (g) of section 85(1) and paragraph (c) of section 88(3) have been complied with, and

(II) if an intermediary is to be used, an estimate of the relevant fees referred to in section 93(b).

(3) Subject to sections 108 and 109, the AHRRA shall determine a section 86 application by—

(a) subject to subsection (4), giving notice in writing to the applicant approving the surrogacy agreement (SJ) attached to the application where the AHRRA is satisfied that—

(i) the surrogacy the subject of the agreement is a permitted international surrogacy, and

(ii) the agreement has been correctly (including accurately) completed and, without prejudice to the generality of the foregoing—

(I) the agreement contains a declaration by the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) that, to the best of their knowledge and belief, the surrogacy the subject of the agreement is a permitted international surrogacy, and

(II) subject to section 105(4), the agreement has been signed by—

(A) the surrogate mother, and

(B) the intending parents (or, in the case of a single intending parent, that intending parent),

or

(b) in any other case, giving notice in writing to the applicant refusing to approve the surrogacy agreement (SJ) attached to the application and stating in the notice the reasons for such refusal.

(4) (a) Subject to paragraph (b), the approval under subsection (3) of a surrogacy agreement (SJ) shall expire when the period of two years has elapsed from the date of such approval.

(b) The AHRRA shall specify in the approval under subsection (3) of a surrogacy agreement (SJ) a shorter period than the two years referred to in paragraph (a) where that is necessary in order to ensure that a specified upper age limit is complied with.

(5) Where the AHRRA is minded to determine a section 86 application by refusing to approve the surrogacy agreement (SJ) attached to the application, it shall, in the interests of procedural fairness, give a notice in writing to the applicant stating—

(a) that the AHRRA is so minded and stating the reasons why the AHRRA is so minded, and

(b) that the applicant may, if the applicant wishes to do so, within the period specified in the notice (being a period reasonable in all the circumstances of the case) provide, in view of those reasons only, supplementary material in the specified form to the AHRRA for the AHRRA’s further consideration before making a determination under subsection (3) following the expiration of that period.

(6) For the avoidance of doubt, it is hereby declared that subsection (5) only applies once to the same section 86 application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 157:

In page 64, between lines 29 and 30, to insert the following:

“Surrogate mothers

87. (1) Subject to subsection (2), a woman may act as a surrogate mother under a surrogacy agreement (SJ) only if—

(a) she has previously given birth to a child before entering into the agreement,

(b) she has attained the age of 25 years before entering into the agreement,

(c) there is a report from the AHR counsellor (SJ) who gave her the AHR counselling (SJ) referred to in paragraph (c) of the definition of “AHR counselling (SJ)” in section 75 that she is suitable to act as a surrogate mother, and

(d) she has been assessed and approved as suitable to act as a surrogate mother by a registered medical practitioner or a medical practitioner (within the meaning of section 2 of the Act of 2007) who is, in the surrogacy jurisdiction concerned, the equivalent of a registered medical practitioner.

(2) (a) A surrogacy agreement (SJ) is not a permitted international surrogacy if the surrogate mother has, before entering into such agreement, been a surrogate mother upon more than one occasion, and where on at least two such occasions a pregnancy was achieved.

(b) In paragraph (a), “surrogate mother” includes, in addition to a surrogate mother as defined in section 2, a woman who, before the commencement of this subsection, has entered into an agreement with the intending parents concerned (or, in the case of a single intending parent, that intending parent) under which she has agreed to attempt to become pregnant, whether or not by the use of her own egg, and, if successful, to transfer the parentage of any child born as a result of the pregnancy to the intending parents (or, in the case of a single intending parent, that intending parent).”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 157:

In subsection (2)(a), after "a" to insert "clinical".

The Minister has said that he will consider the insertion of the term "clinical" to define more specifically the pregnancy. I am happy to hold off until Report Stage for that.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 158:

In page 64, between lines 29 and 30, to insert the following:

“Intending parents

88. (1) A surrogacy agreement (SJ) may be entered into by—

(a) two intending parents jointly, or

(b) a single intending parent.

(2) Any intending parent shall have attained the age of 21 years before the section 86 application concerned is made.

(3) Every surrogacy agreement (SJ) shall—

(a) involve an embryo which was or will be created using the gametes of either or both of the intending parents (or, in the case of a single intending parent, the gamete of that intending parent),

(b) require that at least one of the intending parents (or, in the case of a single intending parent, that intending parent) has objectively, and in all the circumstances of the case, a reasonable expectation of living to parent a child born as a result of AHR treatment (SJ) provided pursuant to the agreement until that child has attained the age of 18 years,

(c) involve the following, as appropriate:

(i) in the case of a male and a female as the intending parents—

(I) the female is unable to conceive a child, including as a result of the provision (including the potential provision) of AHR treatment,

(II) the female is unable to gestate a pregnancy to birth,

(III) the female is unlikely to survive a pregnancy or giving birth, or

(IV) the female is likely to have her health significantly adversely affected by a pregnancy or giving birth;

(ii) in the case of two females as the intending parents, each of them—

(I) is unable to conceive a child, including as a result of the provision (including the potential provision) of AHR treatment,

(II) is unable to gestate a pregnancy to birth,

(III) is unlikely to survive a pregnancy or giving birth, or

(IV) is likely to have her health significantly adversely affected by a

pregnancy or giving birth;

(iii) the intending parents are both male;

(iv) in the case of a single intending parent, the intending parent is a male or, if a

female, she—

(I) is unable to conceive a child, including as a result of the provision

(including the potential provision) of AHR treatment,

(II) is unable to gestate a pregnancy to birth,

(III) is unlikely to survive a pregnancy or giving birth, or

(IV) is likely to have her health significantly adversely affected by a

pregnancy or giving birth.

(4) The intending parents (or, in the case of a single intending parent, that intending parent) shall give an undertaking in the specified form, before the section 86 application concerned is made, that he or she shall—

(a) take all necessary steps to provide care and protection to, prevent harm or neglect to, and ensure the welfare of, any child born as a result of AHR treatment (SJ) provided pursuant to the surrogacy agreement (SJ), and

(b) make a section 98 application in respect of any child born as a result of AHR treatment (SJ) provided pursuant to the surrogacy agreement (SJ).

(5) An intending parent who provided a gamete used to create the embryo to be transferred pursuant to the surrogacy agreement (SJ) shall submit evidence to the AHR treatment provider (SJ) concerned that he or she has undergone, in the State, the testing required for donors of reproductive cells under Regulation 11 of the Regulations of 2006 before the embryo transfer is undertaken and such evidence shall include the results of such testing.”.

Deputy Róisín Shortall

The Minister said that he would have a look at this in terms of definitions.

Deputy Stephen Donnelly

Yes, my recollection was different but I am happy to ask the officials to go back again. It is a medical or sort of scientific view on it.

Deputy Róisín Shortall

Okay.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 158:

In subsection (3)(c)(i)(I), after “conceive” to insert “and/or bear”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 2 to amendment No. 158:

In subsection (3)(c)(i)(I), after “treatment” to insert “for uterine reasons”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 3 to amendment No. 158:

In subsection (3)(c)(ii)(I), after “conceive” to insert “and/or bear”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 4 to amendment No. 158:

In subsection (3)(c)(ii)(I), after “treatment” to insert “for uterine reasons”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 5 to amendment No. 158:

In subsection (3)(c)(iv)(I), after “conceive” to insert “and/or bear”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No.6 to amendment No. 158:

In subsection (3)(c)(iv)(I), after “treatment” to insert “for uterine reasons”.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 159:

In page 64, between lines 29 and 30, to insert the following:

“Prohibition of commercial surrogacy

89. (1) Subject to subsection (2), a surrogacy agreement (SJ) is a commercial surrogacy

agreement (SJ) if any person—

(a) receives or agrees to receive any payment or other reward in consideration of entering into or giving effect to the agreement,

(b) offers, makes or gives, or agrees to offer, make or give, any payment or other reward in consideration of entering into or giving effect to the agreement, or

(c) receives, makes or gives, or agrees to receive, make or give, any payment or other reward in consideration of facilitating the entering into or giving effect to the

agreement.

(2) Any reference to payment or other reward in subsection (1) shall not include fees paid for legal advice referred to in section 85 (4) or 94 or a surrogate mother’s reasonable expenses as construed in accordance with section 90.

(3) A person shall not do an act which falls within paragraph (a), (b) or (c) of subsection (1).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 160:

In page 64, between lines 29 and 30, to insert the following:

“Surrogacy agreements (SJ) and reasonable expenses

90. (1) An obligation under a surrogacy agreement (SJ) to pay or reimburse the surrogate mother’s reasonable expenses is enforceable if the agreement was made before the transfer of the embryo to the surrogate mother.

(2) For the purposes of this Part, the reasonable expenses are the surrogate mother’s reasonable expenses associated with any of the following matters that are part of the surrogacy agreement (SJ):

(a) becoming or trying to become pregnant;

(b) pregnancy or birth;

(c) entering into and giving effect to the agreement.

(3) The reasonable expenses of a surrogate mother associated with the pregnancy or birth referred to in subsection (2)(b) include the following:

(a) any pre-natal or post-natal medical expenses associated with the pregnancy or birth;

(b) any travel or accommodation expenses associated with the pregnancy or birth;

(c) the expense of reimbursing the surrogate mother for any loss of income entailed in being the surrogate mother but only for the following periods:

(i) a period of not more than 6 months during which the birth happened or was expected to happen;

(ii) any other period during the pregnancy or thereafter, not exceeding 12 months in total, when the surrogate mother was unable to work on medical grounds related to pregnancy or birth.

(4) The reasonable expenses associated with entering into and giving effect to a surrogacy agreement (SJ) referred to in subsection (2)(c) include the following:

(a) the expenses associated with the surrogate mother receiving AHR counselling (SJ) in relation to the agreement (whether before or after she entered into the agreement);

(b) the expenses associated with the surrogate mother receiving independent legal advice in relation to the agreement or a parental order related to the agreement;

(c) the expenses, including the reasonable travel and accommodation expenses, associated with the surrogate mother being a party to proceedings in relation to making a parental order related to the agreement.

(5) Subject to subsection (8), the reasonable expenses of the surrogate mother under any of subsections (2) to (4) shall include any other matters that may be prescribed.

(6) Where the Minister prescribes matters under subsection (5), he or she shall, in addition to having regard to the other provisions of this Act, have regard to reasonable expenses that may be incurred by the surrogate mother in relation to any one or more than one of the following:

(a) maternity clothing;

(b) paid housework or childcare undertaken by persons other than the surrogate mother and her spouse, civil partner or cohabitant (if any);

(c) pregnancy aids that assist in the comfort and well-being of the surrogate mother;

(d) any other expenses typically incurred in the course of a pregnancy.

(7) An expense is reasonable under any of subsections (2) to (5) only if—

(a) the expense is actually incurred, and

(b) the amount of the expense can be verified by receipts or other documentation.

(8) On and after the establishment day, the Minister shall not prescribe matters under subsection (5) except after consultation with the AHRRA.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 161:

In page 64, between lines 29 and 30, to insert the following:

“Non-enforceability of surrogacy agreements (SJ)

91. A surrogacy agreement (SJ) shall not be enforceable by or against any person otherwise than as provided for in section 90 .”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 162:

In page 64, between lines 29 and 30, to insert the following:

“Advertisements for surrogacy

92. (1) A person shall not publish, or cause to be published, any advertisement, statement, notice or other material that—

(a) states or implies that a person is or may be willing to enter into or arrange a surrogacy agreement (SJ),

(b) seeks a person willing to act as a surrogate mother,

(c) states or implies that a person is or may be willing to act as a surrogate mother, or

(d) is intending or is likely to induce a person to act as a surrogate mother.

(2) In this section, “publish” means to disseminate or provide access, by any means, to the public or a section of the public.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 163:

In page 64, between lines 29 and 30, to insert the following:

“Role of intermediaries

93. Notwithstanding sections 89 and 92 , the services of an intermediary in a surrogacy jurisdiction may be availed of by intending parents (or, in the case of a single intending parent, that intending parent) in a permitted international surrogacy only if—

(a) the provision of those services by that intermediary in that jurisdiction to those intending parents (or, in the case of a single intending parent, that intending parent) is so provided in accordance with the law of that jurisdiction, and (b) the fees paid to the intermediary for the provision of those services to those intending parents (or, in the case of a single intending parent, that intending parent) (in this paragraph referred to as the “relevant fees”) are reasonable having regard to all the circumstances of the case, including—

(i) the nature of those services,

(ii) the level of fees paid in that jurisdiction for services (if any) comparable to those services, and

(iii) where a legal, medical or counselling service (or any combination thereof) related to the permitted international surrogacy is provided in that jurisdiction to those intending parents (or, in the case of a single intending parent, that intending parent) through the intermediary, the relevant fees as a proportion of the combination of the relevant fees and the professional fees

paid for the legal, medical or counselling service (or, as the case may be, the combination of the professional fees paid for the legal, medical and counselling services).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 164:

In page 64, between lines 29 and 30, to insert the following:

“Requirement for independent legal advice

94. The surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) shall have received independent legal advice from both a legal practitioner and a legal practitioner (SJ) about the legal implications of the surrogacy agreement (SJ) before the section 83 consent concerned is given.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 165:

In page 64, between lines 29 and 30, to insert the following:

“Information to be provided to and recorded by AHRRA in relation to surrogacy agreements (SJ)

95. (1) The intending parents (or, in the case of a single intending parent, that intending parent) shall cause the AHR treatment provider (SJ), for each embryo transfer undertaken by the provider pursuant to a surrogacy agreement (SJ), to acquire and retain a record of the following:

(a) in the case of the surrogate mother:

(i) her name;

(ii) her date and place of birth;

(iii) her nationality;

(iv) her address and contact details;

(b) in the case of each intending parent:

(i) his or her name;

(ii) his or her date of birth;

(iii) whether or not he or she provided a gamete used under the agreement;

(iv) his or her address and contact details;

(c) in the case of the relevant donor (SJG) (if any):

(i) his or her name;

(ii) his or her date and place of birth;

(iii) his or her nationality;

(iv) the date on which, and the AHR treatment facility, AHR treatment facility

(SJ), or other like facility, as appropriate, at which he or she made his or her relevant donation (SJG);

(v) his or her contact details;

(d) the date on which, and the AHR treatment facility (SJ) at which, the embryo transfer was undertaken;

(e) the information given to the AHR treatment provider (SJ) under subsection (2).

(2) Where an AHR treatment (SJ) has been provided pursuant to a surrogacy agreement (SJ) by an AHR treatment provider (SJ), the intending parents (or, in the case of a single intending parent, that intending parent) shall cause the surrogate mother, as soon as is practicable after the surrogate mother becomes aware of the fact, to inform the provider of the following:

(a) whether the embryo transfer resulted in a pregnancy;

(b) where the embryo transfer has resulted in pregnancy, the date on which the surrogate mother is expected to give birth;

(c) where paragraph (b) applies, after the pregnancy of the surrogate mother has come to an end—

(i) whether the pregnancy resulted in the birth of a live child, and

(ii) where the pregnancy resulted in the birth of a live child, the name, date, place of birth, sex and address of the child.

(3) The intending parents (or, in the case of a single intending parent, that intending parent) shall, for each embryo transfer undertaken by the AHR treatment provider (SJ)

pursuant to a surrogacy agreement (SJ), cause the provider to give notice in writing in the specified form to the AHRRA of the following:

(a) that an embryo transfer pursuant to a surrogacy agreement (SJ) has been undertaken at the AHR treatment facility (SJ);

(b) the information that has been recorded in accordance with subsection (1).

(4) Subject to subsection (2), the intending parents (or, in the case of a single intending parent, that intending parent) shall cause the AHR treatment provider (SJ) to give to the AHRRA the information required under subsection (3) in relation to each embryo transfer undertaken pursuant to a surrogacy agreement (SJ) at the AHR treatment facility (SJ) on each of the following dates:

(a) on a date that is not later than six months after the provision of the embryo transfer concerned;

(b) on a date that is not earlier than 12 months and not later than 13 months after the undertaking of the embryo transfer concerned.

(5) (a) Where the intending parents (or, in the case of a single intending parent, that intending parent) becomes aware of an error in any information given under this section to the AHRRA, the intending parents (or intending parent) shall, without delay, inform the AHRRA of the error and give the AHRRA the corrected information.

(b) Where the intending parents (or, in the case of a single intending parent, that intending parent) becomes aware of a failure to give information to the AHRRA required by this section to be so given, the intending parents (or intending parent) shall, without delay, cause the AHR treatment provider (SJ) concerned to inform the AHRRA of the failure and give the AHRRA the information.

(6) Where the intending parents (or, in the case of a single intending parent, that intending parent) have (or has) reasonable grounds to believe that the surrogate mother has failed to give the AHR treatment provider (SJ) the information referred to in subsection (2), such steps shall be taken by the intending parents (or intending parent), or the intending parents (or intending parent) shall cause the provider to take such steps, as are reasonable in all the circumstances of the case to—

(a) contact the surrogate mother to ascertain whether or not there has been such a failure, or

(b) if there has been such a failure, encourage the surrogate mother to comply with that subsection.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 166:

In page 64, between lines 29 and 30, to insert the following:

“Provisions applicable in case of relevant donation (SJG)

96. (1) Where a relevant donation (SJG) is used to create the embryo transferred pursuant to a surrogacy agreement (SJ), the relevant donor (SJG)—

(a) is not the parent of a child born as a result of AHR treatment (SJ) provided pursuant to such use of such donation, and

(b) has no parental rights or duties in respect of the child.

(2) On and after the commencement of this section, a reference in any enactment to a mother, father or parent of a child who was born as a result of AHR treatment (SJ)

provided pursuant to a surrogacy agreement (SJ) under which the embryo transferred was created using a relevant donation (SJG) shall be construed as not including the relevant donor SJG).”.

Deputy Stephen Donnelly

I move amendment No 167:

In page 64, between lines 29 and 30, to insert the following:

“Consent to child born as result of AHR treatment (SJ) provided pursuant to surrogacy agreement (SJ) to live with intending parents

97. (1) Subject to subsection (2), where a child is born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ), the child may reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) only if the surrogate mother consents in the specified form thereto.

(2) Subsection (1) shall not apply where the surrogate mother—

(a) is deceased, or

(b) cannot be located after reasonable efforts have been made to find her.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 168:

In page 64, between lines 29 and 30, to insert the following:

“Application for parental order

98. (1) (a) Subject to subsections (2) to (8), an application (in this Part referred to as a “section 98 application”) may be made to the court for a parental order in respect of a child who was born as a result of AHR treatment provided pursuant to a permitted international surrogacy.

(b) A section 98 application shall be accompanied by—

(i) the required particulars specified in Part 2C of the First Schedule to the Act of 2004,

(ii) subject to subparagraph (iii), if an intermediary was used, particulars of the relevant fees referred to in section 93(b), and

(iii) particulars of the expenses referred to in section 90 (and regardless of whether or not they form part of the relevant fees referred to in subparagraph (ii)).

(2) A section 98 application may only be made by the intending parents (or, in the case of a single intending parent, that intending parent).

(3) The following shall be parties to a section 98 application:

(a) the intending parents (or, in the case of a single intending parent, that intending parent);

(b) the surrogate mother;

(c) the child who was born as a result of AHR treatment (SJ) provided pursuant to the permitted international surrogacy.

(4) A section 98 application shall be accompanied by evidence that—

(a) the embryo from which the child the subject of the application was born—

(i) was created using a gamete from not less than one of the intending parents (including a deceased such parent referred to in section 86 (2)(b)(i)) of that child (or, in the case of a single intending parent of that child, was created using a gamete from that intending parent), and (ii) was not created using an egg from the surrogate mother, and

(b) the child resides with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application.

(5) Subject to subsection (6), a section 98 application shall be made not earlier than 28 days, and not later than six months, after the day on which the child was born.

(6) The court may extend the time referred to in subsection (5) if it is satisfied that—

(a) there are exceptional circumstances justifying the extension, and

(b) it is in the best interests of the child to do so.

(7) A section 98 application in respect of a child shall only be made if any living sibling who was born as a result of the same pregnancy is also the subject of the application.

(8) Without prejudice to the generality of section 99 (6) and (7), the AHRRA and the Attorney General shall be served with a copy of the section 98 application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 169:

In page 64, between lines 29 and 30, to insert the following:

“Grant of parental order

99. (1) (a) Subject to paragraph (b) and subsections (2) to (5), the court may grant an order pursuant to a section 98 application if it is satisfied that—

(i) subject to section 77 (4), the international surrogacy meets all of the requirements specified in section 85 (1) and that the undertaking referred to in section 85 (1)(d) has been complied with,

(ii) the intending parents (or, in the case of a single intending parent, that intending parent) named in the application consent (or, in the case of a single intending parent, consents) to the granting of the order,

(iii) the surrogate mother consents to the granting of the order,

(iv) at the time of the hearing of the application, the child continues to reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application, and

(v) the granting of the order is in the best interests of the child.

(b) A parental order shall include the particulars referred to in section 98 (1)(b)(i).

(2) (a) The court may waive a requirement that the child (as indicated in paragraph (b) of the definition of “surrogacy jurisdiction”) has been born in the approved surrogacy jurisdiction concerned if it is satisfied that there are exceptional circumstances justifying such waiver.

(b) The court may waive a requirement under subsection (1) for consent from the surrogate mother if—

(i) she is deceased, or

(ii) she cannot be located after reasonable efforts have been made to find her.

(3) In determining, under subsection (1)(a)(v), what is in the best interests of the child, the court shall have regard to all the circumstances that it considers relevant to the child who is the subject of the section 98 application concerned, including—

(a) the child’s age and maturity,

(b) the physical, psychological and emotional needs of the child,

(c) the likely effect of the granting of the parental order on the child,

(d) the child’s social, intellectual and educational needs,

(e) the child’s upbringing and care,

(f) the child’s relationship with his or her intending parents (or, in the case of a

single intending parent, that intending parent), and

(g) any other particular circumstances pertaining to the child.

(4) The court shall, in relation to its consideration of a section 98 application and in so

far as is practicable, in respect of any child who is capable of forming his or her own

views, ascertain those views and give them due weight having regard to the age and

maturity of the child.

(5) Proceedings under this section shall be heard otherwise than in public.

(6) At any time on or after the court receives a section 98 application and a relevant authority is not already a party to the proceedings, the court may, at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the relevant authority.

(7) Where, at any time on or after the court receives a section 98 application, a relevant authority requests to be made a party to the proceedings, the court shall order that the relevant authority be added as a party, and, whether or not the relevant authority so requests, the relevant authority may argue before the court any question in relation to the application which the court considers necessary to have fully argued and take such other steps in relation thereto as the relevant authority thinks necessary or expedient.

(8) The court may direct that notice of a section 98 application shall be given to such other persons as the court thinks fit and where notice is so given to any person the court may, either of its own motion or on the application of that person or any party to the proceedings, order that that person shall be added as a party to those proceedings.

(9) In this section, “relevant authority” means—

(a) the Attorney General, or

(b) the AHRRA.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 170:

In page 64, between lines 29 and 30, to insert the following:

“Effect of parental order

100. (1) Where the court grants a parental order in respect of a child—

(a) the child becomes the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(b) subject to paragraph (e), the child is no longer the child of any person not named as a parent in the order,

(c) the child will be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(d) the surrogate mother of the child will lose all parental rights and is freed from all parental duties in respect of the child, and

(e) the order does not affect any order previously made under section 35 of the Status of Children Act 1987 in respect of an intending parent of the child.

(2) Where the court grants a parental order in respect of a child, it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to the AHRRA in order to allow the AHRRA to make an entry in the National Surrogacy Register under section 101 (2)(c).

(3) Where the court grants a parental order in respect of a child—

(a) born in the State, and

(b) the subject of a waiver referred to in section 99 (2)(a),

it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to an tArd-Chláraitheoir in order to allow an tArd-Chláraitheoir to make, or cause to be made, an entry, in the register of parental orders for surrogacy established and maintained under section 13(1)(n) of the Act of 2004, in accordance with section 30O(2) (inserted by section 157(d) ) of that Act.

(4) Where the court refuses to grant a parental order in respect of a child, the court shall, within 14 days immediately following such refusal, give, or cause to be given, a notice in writing of the particulars of such refusal to the AHRRA in order to allow the AHRRA to make an entry in the National Surrogacy Register in accordance with section 101 (2)(c).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 171:

In page 64, between lines 29 and 30, to insert the following:

“National Surrogacy Register - children born as result of AHR treatment (SJ)

101. (1) Subject to subsection (2), the AHRRA shall make an entry in the National Surrogacy Register, in respect of each child born as a result of AHR treatment (SJ) provided

pursuant to a surrogacy agreement (SJ), as soon as is practicable after the AHRRA receives the particulars referred to in subsection (2).

(2) An entry under subsection (1) shall contain the following particulars, where known:

(a) the information in respect of any child born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ), the surrogate mother, the intending parents (or, in the case of a single intending parent, that intending parent) and the relevant donor (SJG) (if any), as given to the AHRRA under section 95 (4);

(b) whether a section 98 application has been made;

(c) where a section 98 application has been made and determined, whether or not a parental order was granted and the date of the determination.

(3) Where the AHRRA has made an entry under subsection (2)(a) and no entry has been subsequently made under subsection (2)(b), the AHRRA shall, not earlier than six months but not later than one year after first making the entry under subsection (2)(a), contact the intending parents (or, in the case of a single intending parent, that intending parent) involved and the surrogate mother, where necessary, to determine if a section 98 application has been made.

(4) Where the AHRRA becomes aware of updated information in relation to subsection (2), or of an error in any information entered under that subsection, it shall, without delay—

(a) update or correct the information, as the case may be, and (b) if the child referred to in that subsection was born in the State, contact an tArd-Chláraitheoir, where necessary, to inform him or her of such updating or correction, as the case may be.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 172:

In page 64, between lines 29 and 30, to insert the following:

“Interaction of National Surrogacy Register and register of births

102. (1) This section applies where a child (AHR) was born in the State and any of the following events (in this section referred to as a “relevant event”) occurs:

(a) the AHRRA receives the copy of a parental order in respect of the child (AHR) from the court under section 100 (2);

(b) the AHRRA is notified under section 100 (4) of a refusal of the court to grant a parental order in respect of the child (AHR).

(2) The AHRRA shall give notice in writing to an tArd-Chláraitheoir of the relevant event (which, in the case of a relevant event which falls within subsection (1)(a), shall have a copy of the parental order attached to it) in order to enable an tArd-Chláraitheoir to note in the entry in the register of births in respect of the child (AHR) that the child was born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) and that additional information is available from the National Surrogacy Register in respect of the child (AHR).

(3) The note referred to in subsection (2) may only be given to the child (AHR) on or after he or she becomes an adult (AHR).

(4) Where the child (AHR), on or after becoming an adult (AHR), applies for a copy of his or her birth certificate, an tArd-Chláraitheoir shall, when issuing a copy of the birth certificate, inform the adult (AHR) that further information relating to him or her is available on the National Surrogacy Register.

(5) In this section—

“birth certificate” means a document issued under section 13(4) of the Act of 2004 in respect of an entry in the register of births; “register of births” means a register of births maintained by an tArd-Chláraitheoir

under—

(a) section 13(1)(a) of the Act of 2004, or

(b) the repealed enactments (within the meaning of the Act of 2004).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 173:

In page 64, between lines 29 and 30, to insert the following:

“Access to certain information from National Surrogacy Register and National Donor-Conceived Person Register

103. (1) An adult (AHR) born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) in which a relevant donation (SJG) was used, or the parent or guardian of a child (AHR) born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) in which a relevant donation (SJG) was used, may make an application (in this section referred to as a “section 103 (1) application”) to the AHRRA for the AHRRA to give him or her the following information, where applicable:

(a) information in respect of the relevant donor (SJG) that is recorded on the National Surrogacy Register other than the donor’s name, date of birth and contact details;

(b) the number of persons who have been born as a result of such use of such donation or, where applicable, a DAHR procedure or further DAHR procedure, or both, and the sex and year of birth of each of them.

(2) A relevant donor (SJG) may make an application (in this section referred to as a “section 103 (2) application”) to the AHRRA for the AHRRA to give him or her information from the National Surrogacy Register on the number of persons who have been born as a result of the use of his or her relevant donation (SJG) in AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ), and the sex and year of birth of each of them.

(3) A donor-conceived child who has attained the age of 16 years, or the parent or guardian of a donor-conceived child who has not attained the age of 16 years, may make an application (in this section referred to as a “section 103 (3) application”) to the AHRRA for the AHRRA to give him or her information on the number of persons who have been born as a result of the use in AHR treatment (SJ) of a relevant donation (SJG) by the same relevant donor (SJG) where such donation so used created the embryo that resulted in the donor-conceived child, and the sex and year of birth of each of them.

(4) Subject to sections 108 and 109, the AHRRA shall comply with a section 103 (1) application, section 103 (2) application or section 103 (3) application by giving notice in writing to the applicant setting out the information sought by the applicant.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 174:

In page 64, between lines 29 and 30, to insert the following:

“Information in respect of intending parents or surrogate mother to be given to adult (AHR)

104. (1) An adult (AHR) born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) may make an application (in this section referred to as a “section 104 application”) to the AHRRA to be given the name, date of birth and contact details of his or her intending parents (or, in the case of a single intending parent, that intending parent) or the surrogate mother, as the case may be, that are recorded on the National Surrogacy Register.

(2) Subject to sections 108 and 109, where the AHRRA receives a section 104 application, it shall give the information sought by the section 104 application to the adult (AHR).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 175:

In page 64, between lines 29 and 30, to insert the following:

“Information in respect of relevant donor (SJG) to be provided to adult born as result of AHR treatment (SJ) provided pursuant to surrogacy agreement (SJ) in which embryo transferred was created using relevant donation (SJG)

105. (1) This section applies to an adult (AHR) who was born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) in which the embryo transferred was created using a relevant donation (SJG).

(2) The adult (AHR) may make an application (in this section referred to as a “section 105 application”) to the AHRRA to be given the name, date of birth and contact details of the relevant donor (SJG) as recorded on the National Surrogacy Register.

(3) Subject to sections 108 and 109, where the AHRRA receives a section 105 application, it shall give the information sought by the section 105 application to the adult (AHR).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 176:

In page 64, between lines 29 and 30, to insert the following:

“Information in respect of other persons that may be requested from AHRRA

106. (1) This section applies to—

(a) a person (in this section referred to as the “relevant person”) who is either—

(i) an adult (AHR) born as a result of AHR treatment (SJ) provided pursuant to a surrogacy agreement (SJ) in which the embryo transferred was created using a relevant donation (SJG), or

(ii) a donor-conceived child who has attained the age of 16 years,

and

(b) the relevant donor (SJG) of a relevant donation (SJG) that was used to create the embryo transferred pursuant to a surrogacy agreement (SJ) which resulted in the birth of a child (AHR).

(2) (a) The relevant person may make an application (in this section referred to as a “section 106 (2) application”) to the AHRRA to record on the National Surrogacy Register or the National Donor-Conceived Person Register, as the case may be, a statement of his or her name, date of birth and contact details, and confirming that he or she consents to the release of that information to the applicant concerned where the AHRRA has received an application under this section for the release of such information.

(b) Subject to sections 108 and 109, the AHRRA shall comply with a section 106 (2) application.

(3) (a) The relevant person may make an application (in this section referred to as a “section 106 (3)(a) application”) to the AHRRA to be given the name, date of birth and contact details of any child (AHR) or adult (AHR) with whom the relevant person shares a common relevant donor (SJG).

(b) The relevant donor (SJG) may make an application (in this section referred to as a “section 106 (3)(b) application”) to the AHRRA to be given the name, date of birth and contact details of the relevant person in relation to whom the donor provided a relevant donation (SJG) referred to in subsection (1)(b).

(c) Subject to sections 108 and 109, where the AHRRA receives a section 106 (3)(a) application or section 106 (3)(b) application, it shall search the National Surrogacy Register and the National Donor-Conceived Person Register for the information sought by the application.

(4) Where the AHRRA receives a section 106 (3)(a) application in respect of a relevant person to whom subsection (2) applies, the AHRRA shall send the relevant person a notice in writing informing him or her that—

(a) a section 106 (3)(a) application has been made by another relevant person who shares a common relevant donor (SJG) with the first-mentioned relevant person, and

(b) unless the first-mentioned relevant person informs the AHRRA, within 12 weeks of the date of sending the notice, that he or she objects to the giving of the information sought by the application, the AHRRA will give the information to the applicant.

(5) Where the AHRRA receives a section 106 (3)(b) application in respect of a relevant person to whom subsection (2) applies, the AHRRA shall send the relevant person a

notice in writing informing him or her that—

(a) a section 106 (3)(b) application has been made by the relevant donor (SJG) of the relevant donation (SJG) that was used to create the embryo concerned, and (b) unless the relevant person informs the AHRRA, within 12 weeks of the date of sending the notice, that he or she objects to the giving of the information sought by the application, the AHRRA will give the information to the applicant.

(6) Where the relevant person to whom a notice under subsection (4) or (5) is given does not, within the 12 weeks referred to in that subsection, object to the giving of the information sought by the section 106 (3)(a) application or section 106 (3)(b) application, as the case may be, the AHRRA shall give that information to the applicant.

(7) In this section, a reference to a relevant donation (SJG) includes a reference to a gamete donated under the Act of 2015 and a reference to a relevant donor (SJG)

includes, in the case of a gamete donated under the Act of 2015, the donor under the Act of 2015 of that gamete.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 177:

In page 64, between lines 29 and 30, to insert the following:

“Provisions supplementary to sections 103 to 106

107. (1) Where information relating to a person is, in accordance with this Part, recorded on the National Surrogacy Register, that person (or, in the case of a person who has not attained the age of 16 years, his or her parent or guardian) may make an application (in this section referred to as a “section 107 application”) to the AHRRA to update the information concerned.

(2) Subject to sections 108 and 109, the AHRRA shall comply with a section 107 application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 178:

178.In page 64, between lines 29 and 30, to insert the following:

“Applications to AHRRA not correctly completed

108. (1) Where the AHRRA is not satisfied that an application made to it under this Part has been correctly (including accurately) completed, it may, by notice in writing given to the applicant, refuse to comply with the application or, as the case requires, refuse to take any other action under this Part on foot of the application and state in the notice the reasons for such refusal.

(2) The reference in subsection (1) to the AHRRA not being satisfied that an application made to it under this Part has been correctly completed includes a reference to the AHRRA not being satisfied as to the identity of the applicant or another person named in the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 179:

In page 64, between lines 29 and 30, to insert the following:

“Additional information

109. Where an application is made under this Part to the AHRRA, the AHRRA may, by notice in writing given to the applicant, require the applicant to give in the specified form such additional information in relation to any matter to which the application relates as the AHRRA reasonably considers necessary to assist it to determine or, as the case requires, take any other action under this Part on foot of the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 180:

In page 64, between lines 29 and 30, to insert the following:

“Provisions supplementary to sections 108 and 109

110. Sections 108 and 109 shall, with all necessary modification, apply to—

(a) a specified form, not being an application made under this Part, given to the AHRRA under this Part as they apply to an application made under this Part, and (b) the person who gave such form to the AHRRA as they apply to the applicant in respect of an application made under this Part.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 181:

In page 64, between lines 29 and 30, to insert the following:

“Failure to comply with undertakings

111. (1) Where it appears to the AHRRA that a person (however described) has failed to comply with an undertaking given by the person pursuant to a provision of this Part, the AHRRA shall request the person to inform it as to the reasons for the non-compliance and the person’s proposals to ensure that the undertaking is complied with.

(2) Where it appears to the AHRRA that the intending parents (or, in the case of a single intending parent, that intending parent) of a child born as a result of a surrogacy agreement (SJ) have (or, in the case of a single intending parent, has) failed without reasonable excuse to comply with the undertakings given by them or him or her, as the case may be, under section 88 , the AHRRA, having considered any information or proposals received from them or him or her under subsection (1), and having consulted with such other authorities of the State as it considers appropriate, may apply to the High Court for directions to ensure the welfare of the child concerned.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 182:

In page 64, between lines 29 and 30, to insert the following:

“CHAPTER 4

Jurisdiction and offences

Definition - Chapter 4

112. In this Chapter, “relevant offence” means a contravention of section 85 (2) or (3), 86(1), 89(3) or 92(1).”.

Amendment agreed to.

Deputy Stephen Donnelly

In page 64, between lines 29 and 30, to insert the following:

“Jurisdiction

113. (1) A person may be tried in the State for a relevant offence in relation to an act, to which this subsection applies by virtue of subsection (2), committed, whether in whole or in

part—

(a) by the person in the State in relation to a place outside the State, (b) by the person outside the State in relation to a place in the State, or

(c) by the person outside the State in relation to a place outside the State if—

(i) that person is a person to whom this subparagraph applies by virtue of subsection (3), and

(ii) the act is an offence under the law of the place where the act was committed.

(2) Subsection (1) applies to an act which, if it had been committed by a person in a place in the State, would constitute a relevant offence.

(3) Subsection (1)(c)(i) applies to each of the following persons:

(a) an Irish citizen;

(b) a person ordinarily resident in the State;

(c) a body corporate established under the law of the State;

(d) a company formed and registered under the Companies Act 2014;

(e) an existing company within the meaning of the Companies Act 2014.

(4) For the purpose of this section, a person shall be deemed to be ordinarily resident in the State if he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the relevant offence concerned.

(5) Proceedings for an offence to which subsection (1)(c) applies may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 184:

In page 64, between lines 29 and 30, to insert the following:

“Evidence in proceedings for offences outside State

114. (1) In any proceedings relating to a relevant offence in circumstances in which section 113 applies—

(a) a certificate that is signed by an officer of the Minister for Foreign Affairs and stating that a passport was issued by the Minister to a person on a specified date, and

(b) a certificate that is signed by an officer of the Minister for Justice and stating that, to the best of the officer’s knowledge and belief, the person has not ceased to be an Irish citizen,

shall be evidence that the person was an Irish citizen on the date on which the relevant offence concerned is alleged to have been committed, unless the contrary is shown.

(2) A document purporting to be a certificate under subsection (1)(a) or (b) is deemed, unless the contrary is shown—

(a) to be such a certificate, and

(b) to have been signed by the person purporting to have signed it.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 185:

185. In page 64, between lines 29 and 30, to insert the following:

“Double jeopardy

115. (1) Where a person has been acquitted of an offence in a place outside the State, he or she shall not be proceeded against for a relevant offence consisting of the alleged act or acts constituting the first-mentioned offence.

(2) Where a person has been convicted of an offence in a place outside the State, he or she shall not be proceeded against for a relevant offence consisting of the act or acts constituting the first-mentioned offence.”.

Amendment agreed to.

Section 76 agreed to.

SECTION 77

Deputy Stephen Donnelly

I move amendment No. 186:

In page 65, line 19, after “Expenditure” to insert “, National Development Plan Delivery”.

Amendment agreed to.

Section 77, as amended, agreed to.

SECTION 78

Deputy Stephen Donnelly

I move amendment No. 187:

In page 66, line 25, after “section 51” to insert “or 86 ”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 188.

In page 66, line 28, to delete “or relevant storage period (E) in accordance with section 39 or 40” and substitute “, relevant storage period (E) or relevant storage period (T) in accordance

with section 39, 40 or 41 ”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 189:

In page 66, line 32, to delete “PGD” and substitute “PGT”.

Amendment agreed to.

Section 78, as amended, agreed to.

NEW SECTION

An Cathaoirleach

Amendments No. 190 and 196 are related and may be discussed together.

Deputy Stephen Donnelly

I move amendment No. 190:

In page 67, between lines 11 and 12, to insert the following:

“Voluntary Register of Relevant Donors and Donor-Conceived Persons

79. (1) The Minister shall, as soon as is practicable after the commencement of this section, by regulations require the AHRRA to establish and maintain a register of relevant donors and donor-conceived persons to be known as the Voluntary Register of Relevant Donors and Donor-Conceived Persons or, alternatively, the Voluntary Register.

(2) Regulations made under subsection (1) shall specify the following:

(a) subject to subsection (6), the particulars of—

(i) relevant donors, or a class of relevant donors, and

(ii) donor-conceived persons, or a class of donor-conceived persons, that shall be entered in the Voluntary Register;

(b) the persons, or class of persons, who are entitled to obtain from the Voluntary Register information, or a class of information, recorded on the Voluntary Register;

(c) the information, or class of information, recorded on the Voluntary Register that may be obtained by the persons, or a class of persons, referred to in paragraph (b);

(d) the procedures to be adopted for matching between persons, or a class of persons, who fall within paragraph (a)(i) or (ii) and persons, or a class of persons, who fall within paragraph (b);

(e) the procedures to be adopted for releasing information, or a class of information, recorded on the Voluntary Register to the persons, or class of persons, referred to in paragraph (b).

(3) The AHRRA shall not enter any particulars of a relevant donor or donor-conceived person in the Voluntary Register unless it is satisfied that the particulars—

(a) are in the specified form, and

(b) were given to the AHRRA—

(i) voluntarily, and

(ii) subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, when the donor or person, as the case may be, had the capacity to do so.

(4) Where the AHRRA receives a request in the specified form from a relevant donor or donor-conceived person to delete his or her particulars from the Voluntary Register, or to update, or correct an error in, any such particulars, the AHRRA shall, without delay, comply with that request.

(5) Where the AHRRA becomes aware of updated information in relation to any particulars entered in the Voluntary Register, or of an error in any such particulars, it shall, without delay, update or correct the particulars, as the case may be.

(6) Without prejudice to the generality of paragraph (a) of subsection (2), a class of relevant donors or donor-conceived persons referred to in that paragraph may be identified by reference to whether or not the class consists of Irish citizens or persons born in the State.

(7) On and after the establishment day, the Minister shall not make regulations under subsection (1) except after consultation with the AHRRA.

(8) In this section—

“donor-conceived person” means a child born as the result of a DAHR procedure or AHR treatment involving the use of gametes or embryos from a relevant donor;

“relevant donor” means—

(a) a person whose gametes or embryos were donated for use in, and were used in—

(i) the provision of a DAHR procedure before the commencement of section 20 of the Act of 2015, or

(ii) the provision of AHR treatment before the commencement of section 51 or 86, as appropriate,

and

(b) such other classes of donor relevant to DAHR procedures or AHR treatment as may be specified in regulations made under subsection (1).”.

Amendment No. 190 seeks to introduce a new proposed section 79 to provide for the establishment of a voluntary register of relevant donors and donor-conceived children. This is to further ensure protection of the donor-conceived children's right to identity. Currently, information on donors, donor-conceived children and intending parents is provided to the Department of Health in respect of each donor-assisted human reproduction procedure performed in Ireland, for inclusion on the national donor-conceived person register. This information can then be accessed by the donor-conceived children when they reach the age of 18. As previously in the committee, the Bill will lower that age to 16. This legal requirement exists in respect of procedures which took place after the commencement of the Children and Family Relationships Act 2015.

The AHR Bill is drafted and the amendments I have introduced on international surrogacy will provide for a similar legal requirement for surrogacy arrangements involving the use of donated gametes. However, there are DHR procedures which took place prior to the introduction of these legal obligations, including the context of past surrogacy arrangement. Currently, there is no mechanism for the collection of information on donors or donor-conceived children who provide gametes for these procedures, either in the 2015 Act or in the AHR Bill, as drafted. This new voluntary register will thus apply to AHR treatment procedures where there exists no legal obligation for the collection of information on donors and donor-conceived children. The purpose of the policy is to provide a mechanism of capturing information on the donors and donor-conceived children so as to protect the right of identity of donor-conceived children to the extent possible in these circumstances.

Deputy David Cullinane

This is a voluntary register of relevant donors and donor-conceived persons. Am I right in saying that this will enable the donor-conceived persons to connect with the donor where the donor signs up to the register?

Deputy Stephen Donnelly

Yes, that is correct.

Amendment agreed to.

Section 79 agreed to.

SECTION 80

An Cathaoirleach

Amendments Nos. 191 and 192 are related and may be discussed together.

Deputy Róisín Shortall

I move amendment No. 191:

In page 68, between lines 7 and 8, to insert the following:

“(3) The Minister shall determine the minimum number of Board members that must have specific expertise in AHR treatments and research.”.

This amendment is about appointments to the board of AHRRA. Amendment No. 191 proposes that the Minister shall determine the minimum number of board members that must have specific expertise in AHR treatments and research. There is a very strong view that there should be a minimum number of AHR professionals appointed to the board, given the huge complexity of this area as we are all experiencing in these sessions.

The pool is small enough, and I think there is a strong case for the Minister being able to appoint people who have that expertise and to determine the minimum number of such people with expertise who will be appointed to the board.

The reason for amendment No. 192 is to delete the phrase "the holder of a licence" with respect to those deemed eligible to serve on the AHRRA board. Again, the pool of people with expertise in this area, given how small the country is, is very limited. We need to ensure that those with up-to-date expertise in this evolving area are represented on the board. Limiting the expertise available to the board, particularly medical and scientific knowledge of AHR, is not in the best interests of the care or safety of patients. I ask the Minister to consider these two amendments. They are not prescriptive but they do provide that the Minister should be able to determine the minimum number of people with such expertise.

Deputy Stephen Donnelly

I thank the Deputy for proposing these two amendments. While I am fully aligned with the sentiment behind the first one, we have taken a look at this and undoubtedly the Minister, whoever that might be, will prescribe members of the board who have expertise. While there are some exceptions, in cases of boards such as this, this type of provision does not sit in primary legislation. I agree with the sentiment and this will happen in practice. I know the Deputy is seeking to have a safeguard in the legislation but, typically, we would not put this in legislation. It could potentially cause issues for appointments in a fast-moving area in which where there are not many people with what constitutes expertise or a suitable level of expertise in AHR treatments and research. I do not propose to accept amendment No. 191 for those reasons.

On amendment No. 192, I hear what the Deputy is saying. We are dealing with a fairly small number of people. The amendment seeks to remove the stipulation that a licence holder for an AHR treatment provision or research cannot be a member of either the board or the committee. This is a standard provision and it is to avoid what could potentially be quite clear conflicts of interest. It is a pretty standard good governance issue. While I accept that we do not have a huge number of people with this expertise, to avoid any question of conflict, the stipulation that licence holders cannot be on the board is correct. This does not stop anyone who is working for the AHR provider. It is only the licence holder and the provision is modest enough. There is potential that the board could be open to conflicts of interest if we were to allow the amendment.

Deputy Róisín Shortall

I, and I am sure everybody else, wants to avoid any potential conflict of interest. The Minister stated this is standard practice. There are umpteen examples where current and licensed practitioners sit on various boards because they are the people, in the main, who have the expertise. That applies in a general sense across the medical area. There are lots of examples of it. However, this is a particular area where there are few people with expertise in the country. Where will the expertise come from on a board that does not include people who are working in the area?

Deputy Stephen Donnelly

If that were the proposal, I would fully agree with the Deputy but it is not a ban on people working in the area. It is targeted only at the licence holder. As this is such a small area, we could quickly get to a point where the board would be making decisions that have a commercial impact on the very small number of people who do this. It is to safeguard against that.

Deputy Róisín Shortall

I appreciate that but these two amendments are connected, obviously. However, with regard to the first one, where the Minister would be able to set down a minimum number of people with expertise in the area, surely that is good practice? I am sure there are other examples where a board, or the person who appoints people to the board, has to ensure that appointees have relevant expertise or experience. I am more concerned about amendment No. 191 and ensuring board members are not administrators, for example. Given this area is so fast-moving, there should be a minimum number of board members with expertise in this area.

Deputy Stephen Donnelly

There are some examples where there are stipulations but, typically, whoever is Minister for Health appoints people to boards almost on a daily basis. There is a process that is gone through to make sure candidates are suitable. The Minister then typically gets a shortlist and, in many cases, direct recommendations. There is a full process in place to ensure this. I do not disagree with the intent but we would not typically stipulate that in the primary legislation.

Deputy Róisín Shortall

I am going to press amendment No. 191.

Deputy Stephen Donnelly

I am sorry to cut across the Deputy but I omitted this. The Bill, on page 68, states:

The Minister shall appoint to be members of the Board persons who, in the opinion of the Minister, have sufficient expertise and experience relating to—

(a) matters connected with the functions of the AHRRA [etc.]

The Minister is, therefore, required to consider these matters.

Deputy David Cullinane

That was the question I was going to ask. I am satisfied with that.

I want to ask a broader question on the board because we are setting up a new body. What comparable bodies have been looked at with regard to the establishment of this body and its size and composition, whether it is the board or whatever staff complement it needs? Is there a level of autonomy being given to the chair regarding how the board evolves? Is that how the Minister sees this being rolled out? Obviously, the composition of the board is important but its functions and powers are also important. I know there is an element of that set down but is it less prescriptive because it is something the Minister thinks the chair will feed back into him? I am trying to figure out how this will work in practice. In earlier debates on this, the Minister told us he does not want a situation where we pass the Bill and then give consideration to a board and that there is work being done in tandem with the passage of this Bill, including preparations for the establishment of the body, of which the board is obviously part. Where is that process? How will it work and what are the timeframes for it?

Deputy Stephen Donnelly

It is a pretty standard approach. We have independent State agencies across the board, if the Deputy will excuse the pun. The Minister will appoint the members of the board. Ministers will sometimes consult the chair of the board on new members and will sometimes agree-----

Deputy David Cullinane

With regard to the numbers on the board and their qualifications, is that a matter for the chair or for the Minister?

Deputy Stephen Donnelly

No, the numbers on the board are set out in statute, as are the terms of the board. The composition of the board is entirely a matter for the Minister while having due regard to-----

Deputy David Cullinane

The section the Minister just read out.

Deputy Stephen Donnelly

-----the section I just read out. In reality what happens is Ministers get an awful lot of board recommendations. I sign authorisations for members of boards on a daily basis. The reality is that except in certain circumstances, a Minister simply does not have the bandwidth to do due diligence on everyone. To some extent, any Minister just has to trust the process. There is a formal process in place. There is vetting, and a whole piece of work that is done. A shortlist is created from applicants. They are then assessed-----

Deputy David Cullinane

An easier way to frame my question is this. When the Bill is passed and signed into law by the President, what does the Minister envisage will be established at that point? Will the full board be in place or just the chair? That is the question I am really asking.

Deputy Stephen Donnelly

The full board.

Deputy David Cullinane

The full board will be in place at that point. Okay.

Deputy Stephen Donnelly

I am sorry, no they will not be in place at the commencement of the Act.

Deputy David Cullinane

What will be in place at the commencement of the Act?

Deputy Stephen Donnelly

The board will not be in place. When we commence, that then provides the statutory underpinning to appoint the board. We are doing a lot of work already in terms of potential candidates for the AHRRA. We want to see this set up very quickly because we are going to have an interim period between the retrospective commencement and the prospective commencement. We want that to be as short as possible. We are doing the work now on what the AHRRA will look like, what staff and contingencies-----

Deputy David Cullinane

Will the chair be appointed at that point? Is that something that-----

Deputy Stephen Donnelly

The chair will be appointed pretty quickly once that portion is commenced. Then the rest of the board will be appointed.

Deputy David Cullinane

That is okay. Are we talking months or weeks?

Deputy Stephen Donnelly

I had this exact conversation earlier this morning with the officials. If the AHRRA was fully functioning within 12 months of the commencement of the Act, that would be pretty rapid in the context of how these things get set up.

Deputy David Cullinane

In the absence of the board being in place, can people avail of international surrogacy in the intervening time period?

Deputy Stephen Donnelly

Yes, they can. When the AHRRA is in place that is when the prospective section-----

Deputy David Cullinane

Will it be unregulated for a time period, until such time as it is regulated?

Deputy Stephen Donnelly

It will be as it is now. Up until the point of the prospective section being enacted, the proposal is that the retrospective section will apply.

Deputy David Cullinane

I understand that. I am talking about the other elements of it, such as international surrogacy.

Deputy Stephen Donnelly

The retrospective element of it on international surrogacy will apply up to the point that the prospective is commenced, but potentially with a caveat or with at least one change around what Deputy Hourigan and I were discussing, which is the question of the primacy versus consideration of the "interest of the child" test. There is a moral hazard question in the interim period which does not exist for the retrospective. There may be some other issues but other than that it will be similar.

Deputy David Cullinane

Whatever about the specific time period, will there be an urgency on the passing of the legislation, at the point when it is signed into law, on the part of whoever is the Minister then to set up that body as quickly as possible?

Deputy Stephen Donnelly

Yes. I guess the point I am making is that we are working on that now. We are not waiting for the commencement of the Act to begin that work. For example, we have new development funding in for this year to begin hiring people into the AHRRA.

Deputy David Cullinane

That is perfect.

Deputy Róisín Shortall

Just on that point, did the Minister consider setting up the AHRRA on an administrative basis?

Deputy Stephen Donnelly

Yes, and the advice I got is that due to the complexity of this and the fact that this is new territory not to do it on an administrative basis.

Deputy Róisín Shortall

Is the Minister expecting a challenge?

Deputy Stephen Donnelly

Who knows? We could well get challenges.

Deputy Róisín Shortall

Could I get the reference the Minister gave us a few minutes ago? He referred to page 68 in relation to the board.

Dr. Edward Keegan

It is at the top of page 68 of the Bill. The Deputy will see it is in section 80(2), line 4. It states that "The Minister shall appoint to be members of the Board persons who, in the opinion of the Minister, have sufficient expertise and experience".

Deputy Róisín Shortall

Okay. That is fine. It was just a case of finding the reference on page 68.

Amendment, by leave, withdrawn.

Section 80 agreed to.

Sections 81 to 88, inclusive, agreed to.

SECTION 89

Deputy Róisín Shortall

I move amendment No. 192:

In page 73, to delete line 24.

Amendment, by leave, withdrawn.

Section 89 agreed to.

SECTION 90

Deputy Stephen Donnelly

I move amendment No. 193:

In page 73, line 29, after “Expenditure” to insert “, National Development Plan Delivery”.

Amendment agreed to.

Section 90, as amended, agreed to.

SECTION 91

Deputy Stephen Donnelly

I move amendment No. 194:

In page 74, line 11, after “Expenditure” to insert “, National Development Plan Delivery”.

Amendment agreed to.

Section 91, as amended, agreed to.

Sections 92 to 98, inclusive, agreed to.

SECTION 99

Deputy Stephen Donnelly

I move amendment No. 195:

In page 78, line 27, after “Expenditure” to insert “, National Development Plan Delivery”.

Amendment agreed to.

Section 99, as amended, agreed to.

Sections 100 to 102, inclusive, agreed to.

SECTION 103

Deputy Stephen Donnelly

I move amendment No. 196:

In page 81, between lines 12 and 13, to insert the following:

“(e) information entered in the Voluntary Register (within the meaning of section 79);”.

Amendment agreed to.

Section 103, as amended, agreed to.

Sections 104 to 109, inclusive, agreed to.

SECTION 110

Deputy Stephen Donnelly

I move amendment No. 197:

In page 84, line 36, after “Part” to insert “2”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 198:

In page 85, line 5, after “Part” to insert “2”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 199:

In page 85, to delete lines 30 and 31 and substitute the following:

“(a) for the purposes of paragraph 3 of Part 2 of Schedule 5, or

(b) for the purposes of paragraph 3 of Part 2 of Schedule 6,”.

Amendment agreed to.

Section 110, as amended, agreed to.

Sections 111 to 124, inclusive, agreed to.

SECTION 125

Deputy Stephen Donnelly

I move amendment No. 200:

In page 95, line 15, after “Expenditure” to insert “, National Development Plan Delivery”.

Amendment agreed to.

Section 125, as amended, agreed to.

Sections 126 to 146, inclusive, agreed to.

SECTION 147

Deputy Stephen Donnelly

I move amendment No. 201:

In page 111, line 14, after “57(1)” to insert “, 85(2) or (3), 86(1), 89(3), 92(1)”.

Amendment agreed to.

Section 147, as amended, agreed to.

Sections 148 to 155, inclusive, agreed to.

NEW SECTIONS

An Cathaoirleach

Amendments Nos. 202 to 225, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Deputy Stephen Donnelly

I move amendment No. 202:

In page 115, between lines 10 and 11, to insert the following:

“PART 11

PAST DOMESTIC AND INTERNATIONAL SURROGACY

CHAPTER 1

Past domestic surrogacy

Definitions – Chapter 1

156. In this Chapter—

“Court” means the High Court;

“parental order” means an order granted by the Court under section 159 for the transfer of the parentage of a child;

“past domestic surrogacy” means a surrogacy agreement—

(a) entered into before the commencement of section 158 by—

(i) a surrogate mother who has been habitually and lawfully resident in the State, immediately before so entering into the agreement—

(I) for such period longer than one year as may be prescribed, or

(II) if no such period stands prescribed, for not less than one year,

and

(ii) either—

(I) both intending parents, not less than one of whom has been habitually and lawfully resident in the State, immediately before so entering into the agreement—

(A) for such period longer than one year as may be prescribed, or

(B) if no such period stands prescribed, for not less than one year,

or

(II) in the case of a single intending parent, that intending parent where he or she has been habitually and lawfully resident in the State, immediately before so entering into the agreement—

(A) for such period longer than one year as may be prescribed, or

(B) if no such period stands prescribed, for not less than one year,

and

(b) under which the embryo transfer was undertaken—

(i) before the commencement of section 158, and

(ii) either—

(I) in the State, or

(II) in a place outside the State where the person who undertook such transfer was authorised to do so under the law of that place;

“relevant child” shall be construed in accordance with section 158(1);

“section 158 application” shall be construed in accordance with section 158(1);

“surrogacy agreement (P)” means a surrogacy agreement referred to in the definition of “past domestic surrogacy”.”.

This large group of amendments seeks to insert a new Part 11 in the Bill, which will introduce a clear process for existing families with children who had been born through surrogacy to gain the full formal recognition by the State of the caring and nurturing parent-child relationship that has been the day-to-day reality for these children and their parents right through these children's lives. For these families, this is the most significant and eagerly awaited component of the legislation.

We have taken on board the vast majority of the relevant recommendations in the findings of the final report of the Oireachtas Joint Committee on International Surrogacy. Chapter 1 of Part 11 provides a process for the recognition of domestic surrogacy arrangements undertaken prior to the commencement of the new, forward-looking domestic surrogacy provisions, as were set out in Part 7 of the Bill. Chapter 2 does the same in respect of past international surrogacy arrangements. I ask the committee to please note that although I may use the term "retrospective" as shorthand to describe these past surrogacies, under the proposed legislation, a parental order will take effect from the date on which it is granted by the court. In other words, it is not backdated to the date of birth. I will now go through each of the proposed amendments in order.

Amendment No. 202 introduces section 156, a simple definition of "past domestic surrogacy".

Amendment No. 203 introduces section 157, which provides that any reference in Chapter 1 "to the AHRRA shall ... be construed as a reference to the Minister" for Health prior to the official establishment of the regulatory authority. This is to allow the proposed new retrospective surrogacy provisions to be commenced and the parental orders to be issued as soon as possible without requiring the AHRRA to be fully operational. This amendment, therefore, is essential. We do not want there to be a situation whereby parents who have children today in Ireland through international surrogacy have to wait for the new authority to be set up. It was one of the requirements I put to the officials to ensure that as soon as this section of the proposed legislation is commenced and as soon as the courts have done what they need to do to be able to take these hearings, the parents will be able to go into the High Court and get what they have long deserved and campaigned for, namely, the parental orders and full parental rights. This amendment, therefore, sets out that in the absence of the AHRRA, in other words, while it is being set up, the Minister, essentially, acts in whatever roles are required to facilitate these parents and children to be able to go to the High Court and avail of these rights.

Amendment No. 204 introduces section 158, which sets out the rules governing the making of an application to the High Court. Amendment No. 205 introduces section 159, which sets out the criteria the court needs to take into account. Amendment No. 206 introduces section 160, which outlines the effect of a parental order application that is granted, most notably that the child becomes the child of every intending parent named in the parental order. Amendment No. 207 introduces section 161, which provides for the maintenance by the AHRRA of the national surrogacy register in relation to the retrospective domestic surrogacy arrangements. This section is similar to the main corresponding prospective Parts. Amendment No. 208 introduces section 162, which sets out how the national surrogacy register will interact with the register of births. Amendment No. 209 introduces section 163, which outlines the information from the national surrogacy register that can be provided to a person born as the result of a retrospective domestic surrogacy agreement. This new section, in effect, mirrors the prospective one. Amendment No. 210 introduces section 164, which provides for a person whose name is on the register to update his or her information. Amendment No. 211 introduces section 165, which confirms that the AHRRA can refuse to comply with an application made that has not been completed correctly. Amendment No. 212 introduces section 166, which provides for the AHRRA to seek additional information in respect of applications made. Amendment No. 213 introduces section 167, which clarifies that information sought by the AHRRA may not necessarily relate to the information required to be provided on the form. Amendment No. 214 introduces section 168, which simply provides definitions in respect of "past international surrogacy".

The remaining amendments in this grouping, namely, amendments Nos. 215 to 225, inclusive, introduce new sections that apply to retrospective international surrogacy and these are more or less identical to the corresponding ones for retrospective domestic surrogacy. A noticeable difference in the international provisions is that we provide for a waiver for the requirement for the child to have been born in the same foreign jurisdiction as the embryo transfer took place in, if there is satisfaction that there are exceptional circumstances justifying this approach.

Deputy David Cullinane

I welcome this section of the Bill and all the amendments. As the Minister said, it is a extremely important section of the legislation. I also welcome what the Minister said in respect of this section of legislation, namely, that is will be commenced as soon as the Bill is passed and it will then be all systems go to make this a reality for these parents and children. This is one of the key elements of this Bill and the reason we want this legislation to be passed as quickly as possible. No one wants to hold this up. Is there any estimation of the number of children who may be impacted by this section?

Deputy Stephen Donnelly

It is several hundred. There is no register.

We do not have an exact number.

Deputy David Cullinane

The Minister said it is estimated to be several hundred. Does he mean 200 or 300?

Deputy Stephen Donnelly

It is unclear because there is no register, but estimates have ranged from 300 to 500.

Deputy David Cullinane

This is a significant number. Obviously, it is-----

Deputy Stephen Donnelly

There may be thousands. There may be 1,000 or 2,000. We do not have the number. We will speak to stakeholders.

Deputy David Cullinane

There is a big difference between 300 and 2,000. Whatever the figure is, however, a great deal of time will be spent in the courts on granting parental orders. What engagement has there been with the courts system to ensure it can cater for the volume of requests that will come? If it is all systems go, I would imagine that all of these parents will want it done as soon as possible. They will all apply at the same time. We were speaking about this in the context of domestic surrogacy and the role of the courts, particularly because of the retrospective nature of this issue, the urgency these families will attach to it, and the fact that we do not know how many there are. It is a bit strange that there is an estimate of between 300 to 2,000, even though there is no register. We would think we would have a better capture of how many children we are speaking about.

Deputy Stephen Donnelly

I took informal advice on the figure of several hundred this morning.

Deputy David Cullinane

I understand that, and it may well be correct.

Deputy Stephen Donnelly

We have people who have been intimately involved in this for many years who assure us it is much higher. I take Deputy Cullinane's point.

Deputy David Cullinane

The Minister might answer the question, if he can, on how he thinks this will work in the court system. If the figure is 2,000, it will mean a great deal of court time will be spent on these matters and that many parental orders will have to be granted.

Deputy Stephen Donnelly

I thank Deputy Cullinane. In the first instance, this is a matter for the Minister, Deputy McEntee.

Deputy David Cullinane

She is not here.

Deputy Stephen Donnelly

I understand that. I am answering the question. As Deputy Cullinane is aware, the Minister, Deputy McEntee, is very strongly supportive of this and facilitating it. The Ministers, Deputies McEntee and O'Gorman, and I have been working together on all of this. I spoke to the Minister, Deputy McEntee, about it just this morning. There are several things we need to put in place as quickly as possible. The courts must put in place numerous processes before they can hear anything. One step is that the President signs the Bill into law and then the Minister will commence parts of the Act. The courts must then operationalise it. This is done over a period. The Minister, Deputy McEntee, is working with her Department-----

Deputy David Cullinane

Does the Minister have an estimation of the length of this period?

Deputy Stephen Donnelly

Not yet, but the Minister, Deputy McEntee, is working with her officials to minimise the amount of time. As Deputy Cullinane said, there needs to be sufficient capacity in the courts to deal with the many intending parents who will come forward.

Deputy David Cullinane

Which court will hear these cases?

Deputy Stephen Donnelly

For the retrospective cases, it will be the High Court. The Minister, Deputy McEntee, is looking at exactly these issues to ensure that the shortest period is achieved.

Deputy Róisín Shortall

My question relates to the Minister's intentions or, perhaps, the intention in the Department, depending who will serve as Minister in the future, on the commencement of the legislation. This is a key issue. There are umpteen examples of very good legislation being introduced and passing all Stages, and then it literally taking years for various sections to be commenced. What is the current thinking on this?

Deputy Stephen Donnelly

I will be commencing this as soon as I can after the President signs the Bill. This aspect of the Bill is the top priority in terms of making it available in the courts. There had been some initial thinking that retrospective application should wait until the authority is set up. I made it very clear that we would not be taking that approach and that I wanted an approach that immediately gave access to parents and their children. This is one of the reasons we are opting for the High Court, as opposed to the lower courts, in the absence of the authority. My intention is to commence this immediately.

Deputy Róisín Shortall

Is it the Minister's intention to commence all of the legislation or certain sections?

Deputy Stephen Donnelly

It is. There may be some parts that will require things to be set up before they can be commenced, but we will certainly be pressing on with implementation of the legislation in its entirety straight away.

Deputy Róisín Shortall

Does the Minister see this happening before the end of the year? That would be a reasonable timeframe.

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

Will the Minister be in a position to complete Report Stage and take the Bill through the Seanad before the summer?

Deputy Stephen Donnelly

We have to. This is why I am keen that we complete Committee Stage either today or tomorrow.

Deputy Róisín Shortall

The Minister's intention is to get the Bill through all Stages.

Deputy Stephen Donnelly

Yes, absolutely.

Deputy David Cullinane

Before the election or after it.

Deputy Bernard J. Durkan

Which election?

Deputy Stephen Donnelly

I would say in between the elections. We have to get this passed before the summer recess. Let us be clear that it has to be passed before the summer recess.

Deputy Neasa Hourigan

One of my questions was on timelines. I am very happy to hear this statement of intent.

I have a question on consent of the biological father. I would like some clarity on what the Minister intends to happen where relationships have broken down. Does the mother need the father's consent to get guardianship? Could the Minister outline this a little bit?

Deputy Stephen Donnelly

Could Deputy Hourigan be a little bit more specific so that I can try to answer it as well as possible?

Deputy Neasa Hourigan

In terms of consent for a parental order, would we always need the father's consent or can the mother move ahead?

Deputy Stephen Donnelly

I am looking up exactly the wording in the Act. If Deputy Hourigan would like to move on, we can come back to it.

Deputy Neasa Hourigan

It is my only question. My other question about timelines has been answered. If the Minister wants to come back to it, that is fine.

An Cathaoirleach

Does anyone else want to come in on this? No. Will we move on?

Deputy Stephen Donnelly

If Deputy Hourigan is happy to proceed we can keep moving through the Bill. When we have an answer, we will come back to it. Would it be enough for me to send Deputy Hourigan a detailed note on it?

Deputy Neasa Hourigan

Yes.

Deputy Stephen Donnelly

I thank the Deputy.

Deputy Colm Burke

The Minister has been speaking about retrospective cases. I am always concerned about this. When a previous Minister tried to bring in legislation retrospectively, unfortunately, €450 million had to be refunded to people. Is the Minister is satisfied that all of the t's are crossed and the i's dotted when it comes to the process that will be put in place?

Deputy Stephen Donnelly

I am to the extent that anyone can say they are. This is something that has never been done before in terms of future international surrogacy, domestic surrogacy and the retrospective part of the legislation. What I can say is that a vast amount of time, effort, blood, sweat and tears has gone in from three Departments that have done everything they can to address the various issues. We all accept that when we do something this complex and new something may come out of left field. This is one of the reasons we have put a review of the legislation in place. The officials have put in the vast amount of work on this legislation.

Deputy Colm Burke

I also want to raise the cost of making a court application. Will there be any provision under the legal aid scheme? It can happen that people have difficulty in trying to fund such applications. How will we deal with this?

Deputy Stephen Donnelly

I thank the Deputy. In the first instance, parents will be expected to pay for it. At one of the meetings I had with the advocacy groups and the parents, they made the point that even though they may have spent a substantial amount of money on surrogacies, they may have none left, their circumstances may have changed or, indeed, their children may have consumed whatever spare income they had, and they would not be in a position to pay. I said that no one will be left outside the courts unable to pay. I am not saying the State will pay all of the legal fees. We are absolutely not proposing that.

Deputy Colm Burke

I accept that. I am concerned about the process.

Deputy Stephen Donnelly

If there are legitimate cases where people do not have the money to go to the courts, we will sort it out. No one will be left outside the courts on the basis of not being able to pay.

Deputy Colm Burke

I thank the Minister.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 203:

In page 115, between lines 10 and 11, to insert the following:

“Operation of Chapter and section 105 before establishment day, etc.

157. (1) A reference in this Chapter (other than in subsection (3)) to the AHRRA shall, before the establishment day, be construed as a reference to the Minister.

(2) The Minister may, before the establishment day and for the purposes of specifying the form of documents required for the purposes of this Chapter, exercise the AHRRA’s power under section 105 as if a reference in that section to the AHRRA were a reference to the Minister.

(3) (a) A reference in this Chapter to the National Surrogacy Register shall, before the establishment day, be construed as a reference to a register (in this subsection referred to as the “interim register”) established and maintained by the Minister for the purposes of making entries in the interim register, before the establishment day, required by the provisions of this Chapter that would, if this section had commenced on the establishment day, be required to be made in the National Surrogacy Register.

(b) The Minister shall, as soon as is practicable on or after the establishment day, give the interim register to the AHRRA.

(c) The AHRRA shall, as soon as is practicable after it is given the interim register, transpose the entries in the interim register from that register to the National Surrogacy Register in such manner as the AHRRA thinks fit.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 204:

In page 115, between lines 10 and 11, to insert the following:

“Application for parental order

158. (1) (a) Subject to subsections (2) to (8), an application (in this Chapter referred to as a “section 158 application”) may be made to the Court for a parental order in respect of a child (in this Chapter referred to as the “relevant child”) who was born in the State as a result of AHR treatment provided pursuant to a surrogacy agreement (P).

(b) A section 158 application shall be accompanied by the required particulars specified in Part 2C of the First Schedule to the Act of 2004.

(c) A section 158 application shall be accompanied by the following particulars:

(i) in the case of the surrogate mother, to the extent known—

(I) her name,

(II) her date and place of birth,

(III) her nationality, and

(IV) her address and contact details;

(ii) in the case of each intending parent—

(I) his or her name,

(II) his or her date of birth,

(III) whether or not he or she provided a gamete used in the agreement, and

(IV) his or her address and contact details.

(2) A section 158 application may be made by—

(a) the intending parents (or, in the case of a single intending parent, that intending parent), or

(b) the relevant child.

(3) The following shall be parties to a section 158 application:

(a) the intending parents (or, in the case of a single intending parent, that intending parent);

(b) the surrogate mother;

(c) the relevant child.

(4) A section 158 application shall be accompanied by evidence that—

(a) the surrogacy agreement to which the application relates is a surrogacy agreement (P),

(b) the embryo from which the relevant child was born—

(i) was created using a gamete from not less than one of the intending parents of that child (or, in the case of a single intending parent of that child, was created using a gamete from that intending parent),

(ii) was not created using an egg from the surrogate mother, and

(iii) where the surrogate mother was party to a subsisting marriage at the time the embryo transfer was undertaken, was not created using the sperm of the husband of the marriage,

and

(c) subject to subsection (9), the relevant child resides with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application.

(5) Subject to subsection (6), a section 158 application shall be made not later than—

(a) the 3rd anniversary of the commencement of this section, or

(b) 6 months after the birth of the relevant child,

whichever is the later.

(6) The Court may extend the time referred to in subsection (5) if it is satisfied that—

(a) there are exceptional circumstances justifying the extension, and

(b) it is in the best interests of the relevant child to do so.

(7) Subject to subsection (9), a section 158 application in respect of the relevant child shall only be made if any living sibling or half-sibling who was born as a result of the same pregnancy the subject of the surrogacy agreement (P) concerned is also the subject of the application.

(8) Without prejudice to the generality of section 159(6) and (7), the AHRRA and the Attorney General shall be served with a copy of a section 158 application.

(9) Subsections (4)(c) and (7) shall not apply where the relevant child has attained the age of 18 years.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 205:

In page 115, between lines 10 and 11, to insert the following:

“Grant of parental order and relevant child ( Chapter 1 )

159. (1) Subject to subsections (2) to (4), the Court may grant an order pursuant to a section 158 application if it is satisfied that—

(a) subject to section 158(9), the evidence referred to in subsection (4) of section 158 proves the matters referred to in paragraphs (a), (b) and (c) of that subsection,

(b) the intending parents (or, in the case of a single intending parent, that intending parent) named in the application consent to the granting of the order,

(c) subject to paragraph (g), the surrogate mother consents to the granting of the order and the recording of information required under section 161, including confirmation that she understands that the relevant child may, in accordance with the provisions of this Chapter—

(i) access the information specified in section 161(2), and

(ii) seek to contact any or all parties to the surrogacy agreement (P),

(d) at the time of the hearing of the application, where the relevant child has not attained the age of 18 years, the child continues to reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application,

(e) subject to paragraph (g), where the relevant child has attained the age of 18 years, he or she consents to the granting of the order,

(f) where the relevant child has not attained the age of 18 years, the granting of the order is in the best interests of the child, and

(g) a consent referred to in paragraph (c) or (e) was given by a person—

(i) voluntarily,

(ii) subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, when he or she had the capacity to do so, and

(iii) only after he or she had received independent legal advice from a legal practitioner about the legal implications of giving such consent.

(2) (a) The Court may waive a requirement under subsection (1)(c) for consent from the surrogate mother if she—

(i) is deceased, or

(ii) cannot be located after reasonable efforts have been made to find her.

(b) The Court may waive a requirement under subsection (1)(e) for consent from the relevant child if—

(i) he or she is deceased, or

(ii) he or she cannot be located after reasonable efforts have been made to find him or her.

(3) In determining, under subsection (1)(f), what is in the best interests of the relevant child, the Court shall have regard to all the circumstances that it considers relevant to the child, including—

(a) the child’s age and maturity,

(b) the physical, psychological and emotional needs of the child,

(c) the likely effect of the granting of the parental order on the child,

(d) the child’s social, intellectual and educational needs,

(e) the child’s upbringing and care,

(f) the child’s relationship with his or her intending parents (or, in the case of a single intending parent, that intending parent), and

(g) any other particular circumstances pertaining to the child.

(4) The Court shall, in relation to its consideration of a section 158 application and in so far as is practicable, in respect of any relevant child who is capable of forming his or her own views, ascertain those views and give them due weight, having regard to the age and maturity of the child.

(5) Proceedings under this section shall be heard otherwise than in public.

(6) At any time on or after the Court receives a section 158 application and a relevant authority is not already a party to the proceedings, the Court may, at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the relevant authority.

(7) Where, at any time on or after the Court receives a section 158 application, a relevant authority requests to be made a party to the proceedings, the Court shall order that the relevant authority be added as a party, and, whether or not the relevant authority so requests, the relevant authority may argue before the Court any question in relation to the application which the Court considers necessary to have fully argued and take such other steps in relation thereto as the relevant authority thinks necessary or expedient.

(8) The Court may direct that notice of a section 158 application shall be given to such other persons as the Court thinks fit and where notice is so given to any person the Court may, either of its own motion or on the application of that person or any party to the proceedings, order that that person shall be added as a party to those proceedings.

(9) In this section, “relevant authority” means—

(a) the Attorney General, or

(b) the AHRRA.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 206:

In page 115, between lines 10 and 11, to insert the following:

“Effect of parental order

160. (1) Where the Court grants a parental order in respect of the relevant child—

(a) the child becomes the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(b) subject to paragraph (e), the child is no longer the child of any person other than a person named as a parent in the order,

(c) the child will be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(d) the surrogate mother of the child will lose all parental rights and is freed from all parental duties in respect of the child, and

(e) the order does not affect any order previously made under section 35 of the Status of Children Act 1987 in respect of an intending parent of the child.

(2) Where the Court grants a parental order in respect of the relevant child, it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to an tArd-Chláraitheoir and the AHRRA in order to allow—

(a) an tArd-Chláraitheoir to make, or cause to be made, an entry, in the register of parental orders for surrogacy established and maintained under section 13(1)(n) of the Act of 2004, in accordance with section 30O(2) (inserted by section 157(d)) of that Act, and

(b) the AHRRA to make an entry in the National Surrogacy Register under section 161(2)(b).

(3) Where the Court refuses to grant a parental order in respect of the relevant child, the Court shall, within 14 days immediately following such refusal, give, or cause to be given, a notice in writing of the particulars of such refusal to the AHRRA in order to allow the AHRRA to make an entry in the National Surrogacy Register under section 161(2)(b).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 207:

In page 115, between lines 10 and 11, to insert the following:

“National Surrogacy Register and relevant child ( Chapter 1 )

161. (1) Subject to subsection (2), the AHRRA shall make an entry in the National Surrogacy Register, in respect of the relevant child, as soon as is practicable after the AHRRA receives the section 158 application concerned.

(2) An entry under subsection (1) shall contain the following particulars, to the extent known:

(a) the information in respect of the relevant child, the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) as given to the Court as part of the section 158 application;

(b) where the section 158 application has been determined, whether or not a parental order was granted and the date of the determination.

(3) Where the AHRRA becomes aware of updated information in relation to subsection (2), or of an error in any information entered under that subsection, it shall, without delay, update or correct the information, as the case may be, and contact an tArd-Chláraitheoir, where necessary, to inform him or her of such updating or correction, as the case may be.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 208:

In page 115, between lines 10 and 11, to insert the following:

“Interaction of National Surrogacy Register and register of births

162. (1) This section applies where any of the following events (in this section referred to as a “relevant event”) occurs:

(a) the AHRRA receives the copy of a parental order in respect of the relevant child from the Court under section 160(2);

(b) the AHRRA is notified under section 160(3) of a refusal of the Court to grant a parental order in respect of the relevant child.

(2) The AHRRA shall give notice in writing to an tArd-Chláraitheoir of the relevant event (which, in the case of a relevant event which falls within subsection (1)(a), shall have a copy of the parental order attached to it) in order to enable an tArd-Chláraitheoir to note in the entry in the register of births in respect of the relevant child that the child was born as a result of AHR treatment provided pursuant to a surrogacy agreement (P) and that additional information is available from the National Surrogacy Register in respect of the child.

(3) The note referred to in subsection (2) may only be given to the relevant child on or after he or she becomes an adult (AHR).

(4) Where the relevant child, on or after becoming an adult (AHR), applies for a copy of his or her birth certificate, an tArd-Chláraitheoir shall, when issuing a copy of the birth certificate, inform the adult (AHR) that further information relating to him or her is available on the National Surrogacy Register.

(5) In this section—

“birth certificate” means a document issued under section 13(4) of the Act of 2004 in respect of an entry in the register of births;

“register of births” means a register of births maintained by an tArd-Chláraitheoir under—

(a) section 13(1)(a) of the Act of 2004, or

(b) the repealed enactments (within the meaning of the Act of 2004).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 209:

In page 115, between lines 10 and 11, to insert the following:

“Information in respect of intending parents or surrogate mother to be given to adult (AHR)

163. (1) An adult (AHR) born as a result of AHR treatment provided pursuant to a surrogacy agreement (P) may make an application (in this section referred to as a “section 163 application”) to the AHRRA to be given the name, date of birth and contact details of his or her intending parents (or, in the case of a single intending parent, that intending parent) or the surrogate mother, as the case may be, that are recorded on the National Surrogacy Register.

(2) Subject to sections 165 and 166, where the AHRRA receives a section 163 application, it shall give the information sought by the section 163 application to the adult (AHR).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 210:

In page 115, between lines 10 and 11, to insert the following:

“Provisions supplementary to section 163

164. (1) Where information relating to a person is, in accordance with this Chapter, recorded on the National Surrogacy Register, that person (or, in the case of a person who has not attained the age of 16 years, his or her parent or guardian) may make an application (in this section referred to as a “section 164 application”) to the AHRRA to update the information concerned.

(2) Subject to sections 165 and 166, the AHRRA shall comply with a section 164 application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 211:

In page 115, between lines 10 and 11, to insert the following:

“Applications to AHRRA not correctly completed

165. (1) Where the AHRRA is not satisfied that an application made to it under this Chapter has been correctly (including accurately) completed, it may, by notice in writing given to the applicant, refuse to comply with the application or, as the case requires, refuse to take any other action under this Chapter on foot of the application and state in the notice the reasons for such refusal.

(2) The reference in subsection (1) to the AHRRA not being satisfied that an application made to it under this Chapter has been correctly completed includes a reference to the AHRRA not being satisfied as to the identity of the applicant or another person named in the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 212:

In page 115, between lines 10 and 11, to insert the following:

“Additional information

166. Where an application is made under this Chapter to the AHRRA, the AHRRA may, by notice in writing given to the applicant, require the applicant to give in the specified form such additional information in relation to any matter to which the application relates as the AHRRA reasonably considers necessary to assist it to determine or, as the case requires, take any other action under this Chapter on foot of the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 213:

In page 115, between lines 10 and 11, to insert the following:

“Provisions supplementary to sections 165 and 166

167. Sections 165 and 166 shall, with all necessary modifications, apply to—

(a) a specified form, not being an application made under this Chapter, given to the AHRRA as they apply to an application made under this Chapter, and

(b) the person who gave such form to the AHRRA as they apply to the applicant in respect of an application made under this Chapter.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 214:

In page 115, between lines 10 and 11, to insert the following:

“CHAPTER 2

Past international surrogacy

Definitions – Chapter 2

168. In this Chapter—

“Court” means the High Court;

“parental order” means an order granted by the Court under section 171 for the transfer of the parentage of a child;

“past international surrogacy”, in relation to a surrogacy jurisdiction, means a surrogacy agreement—

(a) entered into before the commencement of section 170 by—

(i) a surrogate mother who has been habitually and lawfully resident in that jurisdiction, immediately before so entering into the agreement—

(I) for such period longer than one year as may be prescribed, or

(II) if no such period stands prescribed, for not less than one year,

and

(ii) either—

(I) both intending parents, not less than one of whom has been habitually and lawfully resident in the State, immediately before so entering into the agreement—

(A) for such period longer than one year as may be prescribed, or

(B) if no such period stands prescribed, for not less than one year,

or

(II) in the case of a single intending parent, that intending parent where he or she has been habitually and lawfully resident in the State, immediately before so entering into the agreement—

(A) for such period longer than one year as may be prescribed, or

(B) if no such period stands prescribed, for not less than one year,

and

(b) under which the embryo transfer was undertaken—

(i) before the commencement of section 170, and

(ii) in that jurisdiction;

“relevant child” shall be construed in accordance with section 170(1)

“section 170 application” shall be construed in accordance with section 170(1);

“surrogacy agreement (P)” means a surrogacy agreement referred to in the definition of “past international surrogacy”;

“surrogacy jurisdiction” means a jurisdiction outside the State where—

(a) the surrogacy the subject of a past international surrogacy has been lawfully undertaken, and

(b) the embryo transfer concerned has been undertaken and, subject to section 171(2)(a), the child (if any) resulting from that transfer has been born.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 215:

In page 115, between lines 10 and 11, to insert the following:

“Operation of Chapter and section 105 before establishment day, etc.

169. (1) A reference in this Chapter (other than in subsection (3)) to the AHRRA shall, before the establishment day, be construed as a reference to the Minister.

(2) The Minister may, before the establishment day and for the purposes of specifying the form of documents required for the purposes of this Chapter, exercise the AHRRA’s power under section 105 as if a reference in that section to the AHRRA were a reference to the Minister.

(3) (a) A reference in this Chapter to the National Surrogacy Register shall, before the establishment day, be construed as a reference to a register (in this subsection referred to as the “interim register”) established and maintained by the Minister for the purposes of making entries in the interim register, before the establishment day, required by the provisions of this Chapter that would, if this section had commenced on the establishment day, be required to be made in the National Surrogacy Register.

(b) The Minister shall, as soon as is practicable on or after the establishment day, give the interim register to the AHRRA.

(c) The AHRRA shall, as soon as is practicable after it is given the interim register, transpose the entries in the interim register from that register to the National Surrogacy Register in such manner as the AHRRA thinks fit.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 216:

In page 115, between lines 10 and 11, to insert the following:

“Application for parental order

170. (1) (a) Subject to subsections (2) to (8), an application (in this Chapter referred to as a “section 170 application”) may be made to the Court for a parental order in respect of a child (in this Chapter referred to as the “relevant child”) who was born as a result of AHR treatment provided pursuant to a surrogacy agreement (P).

(b) A section 170 application shall be accompanied by the required particulars specified in Part 2C of the First Schedule to the Act of 2004.

(c) A section 170 application shall be accompanied by the following particulars:

(i) in the case of the surrogate mother, to the extent known—

(I) her name,

(II) her date and place of birth,

(III) her nationality, and

(IV) her address and contact details;

(ii) in the case of each intending parent—

(I) his or her name,

(II) his or her date of birth,

(III) whether or not he or she provided a gamete used in the surrogacy agreement (P), and

(IV) his or her address and contact details.

(2) A section 170 application may be made by—

(a) the intending parents (or, in the case of a single intending parent, that intending parent), or

(b) the relevant child.

(3) The following shall be parties to a section 170 application:

(a) the intending parents (or, in the case of a single intending parent, that intending parent);

(b) the surrogate mother;

(c) the relevant child.

(4) A section 170 application shall be accompanied by evidence that—

(a) the surrogacy agreement to which the application relates is a surrogacy agreement (P),

(b) the embryo from which the relevant child was born—

(i) was created using a gamete from not less than one of the intending parents of that child (or, in the case of a single intending parent of that child, was created using a gamete from that intending parent),

(ii) was not created using an egg from the surrogate mother, and

(iii) where the surrogate mother was party to a subsisting marriage at the time the embryo transfer was undertaken, was not created using the sperm of the husband of the marriage,

and

(c) subject to subsection (9), the relevant child resides with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application.

(5) Subject to subsection (6), a section 170 application shall be made not later than—

(a) the 3rd anniversary of the commencement of this section, or

(b) 6 months after the birth of the relevant child,

whichever is the later.

(6) The Court may extend the time referred to in subsection (5) if it is satisfied that—

(a) there are exceptional circumstances justifying the extension, and

(b) it is in the best interests of the relevant child to do so.

(7) Subject to subsection (9), a section 170 application in respect of the relevant child shall only be made if any living sibling or half-sibling who was born as a result of the same pregnancy the subject of the surrogacy agreement (P) concerned is also the subject of the application.

(8) Without prejudice to the generality of section 171(6) and (7), the AHRRA and the Attorney General shall be served with a copy of a section 170 application.

(9) Subsections (4)(c) and (7) shall not apply where the relevant child has attained the age of 18 years.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 217:

In page 115, between lines 10 and 11, to insert the following:

“Grant of parental order

171. (1) Subject to subsections (2) to (4), the Court may grant an order pursuant to a section 170 application if it is satisfied that—

(a) subject to section 170(9), the evidence referred to in subsection (4) of section 170 proves the matters referred to in paragraphs (a), (b) and (c) of that subsection,

(b) the intending parents (or, in the case of a single intending parent, that intending parent) named in the application consent to the granting of the order,

(c) subject to paragraph (g), the surrogate mother consents to the granting of the order and the recording of information required under section 173, including confirmation that she understands that the relevant child may, in accordance with the provisions of this Chapter—

(i) access the information specified in section 173(2), and

(ii) seek to contact any or all parties to the surrogacy agreement (P),

(d) at the time of the hearing of the application, where the relevant child has not attained the age of 18 years, the child continues to reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application,

(e) subject to paragraph (g), where the relevant child has attained the age of 18 years, he or she consents to the granting of the order,

(f) where the relevant child has not attained the age of 18 years, the granting of the order is in the best interests of the child, and

(g) a consent referred to in paragraph (c) or (e) was given by a person—

(i) voluntarily,

(ii) subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, when he or she had the capacity to do so, and

(iii) only after he or she had received independent legal advice from a legal practitioner about the legal implications of giving such consent.

(2) (a) The Court may waive a requirement under subsection (1)(a) that the relevant child (as indicated in paragraph (b) of the definition of “surrogacy jurisdiction”) has been born in the surrogacy jurisdiction concerned if it is satisfied that there are exceptional circumstances justifying such waiver.

(b) The Court may waive a requirement under subsection (1)(c) for consent from the surrogate mother if—

(i) she is deceased, or

(ii) she cannot be located after reasonable efforts have been made to find her.

(c) The Court may waive a requirement under subsection (1)(e) for consent from the relevant child if—

(i) he or she is deceased, or

(ii) he or she cannot be located after reasonable efforts have been made to find him or her.

(3) In determining, under subsection (1)(f), what is in the best interests of the relevant child, the Court shall have regard to all the circumstances that it considers relevant to the child, including—

(a) the child’s age and maturity,

(b) the physical, psychological and emotional needs of the child,

(c) the likely effect of the granting of the parental order on the child,

(d) the child’s social, intellectual and educational needs,

(e) the child’s upbringing and care,

(f) the child’s relationship with his or her intending parents (or, in the case of a single intending parent, that intending parent), and

(g) any other particular circumstances pertaining to the child.

(4) The Court shall, in relation to its consideration of a section 170 application and in so far as is practicable, in respect of any relevant child who is capable of forming his or her own views, ascertain those views and give them due weight having regard to the age and maturity of the child.

(5) Proceedings under this section shall be heard otherwise than in public.

(6) At any time on or after the Court receives a section 170 application and a relevant authority is not already a party to the proceedings, the Court may, at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the relevant authority.

(7) Where, at any time on or after the Court receives a section 170 application, a relevant authority requests to be made a party to the proceedings, the Court shall order that the relevant authority be added as a party, and, whether or not the relevant authority so requests, the relevant authority may argue before the Court any question in relation to the application which the Court considers necessary to have fully argued and take such other steps in relation thereto as the relevant authority thinks necessary or expedient.

(8) The Court may direct that notice of a section 170 application shall be given to such other persons as the Court thinks fit and where notice is so given to any person the Court may, either of its own motion or on the application of that person or any party to the proceedings, order that that person shall be added as a party to those proceedings.

(9) In this section, “relevant authority” means—

(a) the Attorney General, or

(b) the AHRRA.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 218:

In page 115, between lines 10 and 11, to insert the following:

“Effect of parental order

172. (1) Where the Court grants a parental order in respect of the relevant child—

(a) the child becomes the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(b) subject to paragraph (e), the child is no longer the child of any person other than a person named as a parent in the order,

(c) the child will be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,

(d) the surrogate mother of the child will lose all parental rights and is freed from all parental duties in respect of the child, and

(e) the order does not affect any order previously made under section 35 of the Status of Children Act 1987 in respect of an intending parent of the child.

(2) Where the Court grants a parental order in respect of the relevant child, it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to the AHRRA in order to allow the AHRRA to make an entry in the National Surrogacy Register under section 173(2)(b).

(3) Where the Court grants a parental order in respect of the relevant child—

(a) born in the State, and

(b) the subject of a waiver referred to in section 171(2)(a),

it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to an tArd-Chláraitheoir in order to allow an tArd-Chláraitheoir to make, or cause to be made, an entry, in the register of parental orders for surrogacy established and maintained under section 13(1)(n) of the Act of 2004, in accordance with section 30O(2) (inserted by section 157(d)) of that Act.

(4) Where the Court refuses to grant a parental order in respect of the relevant child, the Court shall, within 14 days immediately following such refusal, give, or cause to be given, a notice in writing of the particulars of such refusal to the AHRRA in order to allow the AHRRA to make an entry in the National Surrogacy Register under section 173(2)(b).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 219:

In page 115, between lines 10 and 11, to insert the following:

“National Surrogacy Register and relevant child (Chapter 2)

173. (1) Subject to subsection (2), the AHRRA shall make an entry in the National Surrogacy Register in respect of the relevant child as soon as is practicable after the AHRRA receives the section 170 application concerned.

(2) An entry under subsection (1) shall contain the following particulars, to the extent known:

(a) the information in respect of the relevant child, the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent), as given to the Court as part of the section 170 application;

(b) where the section 170 application has been determined, whether or not a parental order was granted and the date of the determination.

(3) Where the AHRRA becomes aware of updated information in relation to subsection (2), or of an error in information entered under that subsection, it shall, without delay—

(a) update or correct the information, as the case may be, and

(b) if the child referred to in that subsection was born in the State, contact an tArd-Chláraitheoir, where necessary, to inform him or her of such updating or correction, as the case may be.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 220:

In page 115, between lines 10 and 11, to insert the following:

“Interaction of National Surrogacy Register and register of births

174. (1) This section applies where the relevant child was born in the State and any of the following events (in this section referred to as a “relevant event”) occurs:

(a) the AHRRA receives the copy of a parental order in respect of the relevant child from the Court under section 172(2);

(b) the AHRRA is notified under section 172(4) of a refusal of the Court to grant a parental order in respect of the relevant child.

(2) The AHRRA shall give notice in writing to an tArd-Chláraitheoir of the relevant event (which, in the case of a relevant event which falls within subsection (1)(a), shall have a copy of the parental order attached to it) in order to enable an tArd-Chláraitheoir to note in the entry in the register of births in respect of the relevant child that the child was born as a result of AHR treatment provided pursuant to a surrogacy agreement (P) and that additional information is available from the National Surrogacy Register in respect of the child.

(3) The note referred to in subsection (2) may only be given to the relevant child on or after he or she becomes an adult (AHR).

(4) Where the relevant child, on or after becoming an adult (AHR), applies for a copy of his or her birth certificate, an tArd-Chláraitheoir shall, when issuing a copy of the birth certificate, inform the adult (AHR) that further information relating to him or her is available on the National Surrogacy Register.

(5) In this section—

“birth certificate” means a document issued under section 13(4) of the Act of 2004 in respect of an entry in the register of births;

“register of births” means a register of births maintained by an tArd-Chláraitheoir under—

(a) section 13(1)(a) of the Act of 2004, or

(b) the repealed enactments (within the meaning of the Act of 2004).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 221:

In page 115, between lines 10 and 11, to insert the following:

“Information in respect of intending parents or surrogate mother to be given to adult (AHR)

175. (1) An adult (AHR) born as a result of AHR treatment provided pursuant to a surrogacy agreement (P) may make an application (in this section referred to as a “section 175 application”) to the AHRRA to be given the name, date of birth and contact details of his or her intending parents (or, in the case of a single intending parent, that intending parent) or the surrogate mother, as the case may be, that are recorded on the National Surrogacy Register.

(2) Subject to sections 177 and 178, where the AHRRA receives a section 175 application, it shall give the information sought by the section 175 application to the adult (AHR).”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 222:

In page 115, between lines 10 and 11, to insert the following:

“Provisions supplementary to section 175

176. (1) Where information relating to a person is, in accordance with this Chapter, recorded on the National Surrogacy Register, that person (or, in the case of a person who has not attained the age of 16 years, his or her parent or guardian) may make an application (in this section referred to as a “section 176 application”) to the AHRRA to update the information concerned.

(2) Subject to sections 177 and 178, the AHRRA shall comply with a section 176 application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 223:

In page 115, between lines 10 and 11, to insert the following:

“Applications to AHRRA not correctly completed

177. (1) Where the AHRRA is not satisfied that an application made to it under this Chapter has been correctly (including accurately) completed, it may, by notice in writing given to the applicant, refuse to comply with the application or, as the case requires, refuse to take any other action under this Chapter on foot of the application and state in the notice the reasons for such refusal.

(2) The reference in subsection (1) to the AHRRA not being satisfied that an application made to it under this Chapter has been correctly completed includes a reference to the AHRRA not being satisfied as to the identity of the applicant or another person named in the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 224:

In page 115, between lines 10 and 11, to insert the following:

“Additional information

178. Where an application is made under this Chapter to the AHRRA, the AHRRA may, by notice in writing given to the applicant, require the applicant to give in the specified form such additional information in relation to any matter to which the application relates as the AHRRA reasonably considers necessary to assist it to determine or, as the case requires, take any other action under this Chapter on foot of the application.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 225:

In page 115, between lines 10 and 11, to insert the following:

“Provisions supplementary to sections 177 and 178

179. Sections 177 and 178 shall, with all necessary modification, apply to—

(a) a specified form, not being an application made under this Chapter, given to the AHRRA as they apply to an application made under this Chapter, and

(b) the person who gave such form to the AHRRA as they apply to the applicant in respect of an application made under this Chapter.”

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 226:

In page 115, between lines 12 and 13, to insert the following:

“Amendment of Irish Nationality and Citizenship Act 1956

156. The Irish Nationality and Citizenship Act 1956 is amended by the insertion of the following section after section 11:

“Citizenship of children born as result of donor-assisted human reproduction procedures or surrogacy

11A. (1) Subject to subsection (2), for the purposes of this Act, ‘parent’ shall include a person who is, under section 5 of the Act of 2015, a parent of a child born in the State.

(2) Where a person who is an Irish citizen is declared under section 21 or 22 of the Act of 2015 to be a parent of a child, the child, if not already an Irish citizen, shall be an Irish citizen from the date on which the declaration is made.

(3) Where—

(a) a parental order is granted in respect of a child, and

(b) an intending parent named in the parental order as a parent of the child is an Irish citizen,

the child, if not already an Irish citizen, shall be an Irish citizen from the date on which the parental order is granted.

(4) This section shall apply to a child born before or after the commencement of this section.

(5) In this section—

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

‘Act of 2024’ means the Health (Assisted Human Reproduction) Act 2024;

‘intending parent’ has the meaning assigned to it by the Act of 2024;

‘parental order’ means an order granted under section 63(1)(a), 99(1)(a), 159 or 171 of the Act of 2024 for the transfer of the parentage of a child.”.”.

The amendment seeks to amend the Irish Nationality and Citizenship Act 1956 in order to ensure the Irish citizenship of children born as a result of donor-assisted human reproduction procedures undertaken in accordance with the Children and Family Relationships Act 2015 or permitted surrogacy agreements, both domestic and international. I flag the possibility that further potential amendments to the 1956 Act may be brought on Report Stage. This depends on the outcomes of broader ongoing policy deliberations in respect of issues involving Irish citizens living here or abroad engaging in donor-assisted human reproduction procedures or surrogacy arrangements in jurisdictions other than the State and cases where children are born outside Ireland to Irish parents living outside Ireland.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 227:

In page 115, between lines 12 and 13, to insert the following:

“Amendment of Guardianship of Infants Act 1964

157. The Guardianship of Infants Act 1964 is amended—

(a) in section 2(1)—

(i) in the definition of “father”, by the insertion of “and a male intending parent who has been named in a parental order as the parent of a child” after “adoption order”,

(ii) in the definition of “mother”, by the insertion of “and a female intending parent who has been named in a parental order as the parent of a child” after “adoption order”, and

(iii) by the insertion of the following definitions:

“ ‘Act of 2024’ means the Health (Assisted Human Reproduction) Act 2024;

‘intending parent’ has the meaning assigned to it by the Act of 2024;

‘parental order’ means an order granted under section 63(1)(a), 99(1)(a), 159 or 171 of the Act of 2024 for the transfer of the parentage of a child;

‘surrogacy agreement’ has the meaning assigned to it by the Act of 2024;

‘surrogate mother’ has the meaning assigned to it by the Act of 2024;”,

(b) in section 6—

(i) in subsection (1)—

(I) in paragraph (a), by the deletion of “or”,

(II) in paragraph (b), by the substitution of “couple, or” for “couple.”, and

(III) by the insertion of the following paragraph after paragraph (b):

“(c) where a married couple of the same sex have both been named in a parental order as the parent of a child, each of the married couple.”,

(ii) by the insertion of the following subsection after subsection (1A):

“(1B) Where civil partners or cohabiting couples have both been named in a parental order as the parents of a child, the civil partners or cohabitants, as the case may be, shall be guardians of the child jointly.”,

(iii) by the insertion of the following subsections after subsection (3B):

“(3C) On the death of a spouse who has been named in a parental order as the parent of a child and whose spouse of the same sex was also so named in the order, the other spouse, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased spouse or by the court.

(3D) (a) On the death of a civil partner who has been named in a parental order as the parent of a child and whose civil partner was also so named in the order, the other civil partner, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased civil partner or by the court.

(b) On the death of a cohabitant who has been named in a parental order as the parent of a child and whose cohabitant was also so named in the order, the other cohabitant, if surviving, shall be guardian of the child, either alone or jointly with any guardian appointed by the deceased cohabitant or by the court.”,

and

(iv) in subsection (4), by the substitution of “subsections (1A) and (1B)” for “subsection (1A)”,

and

(c) by the insertion of the following sections after section 6B:

“Guardianship of child born as result of AHR treatment provided pursuant to surrogacy agreement

6BA. (1) Where—

(a) a child is born as the result of AHR treatment provided pursuant to (or for the purposes of) a surrogacy agreement,

(b) an intending parent and the surrogate mother have each declared that he or she, in accordance with the provisions of the Act of 2024—

(i) is, as the case requires, an intending parent or the surrogate mother of the child, and

(ii) agrees to the appointment of the intending parent as a guardian of the child,

and

(c) the intending parent and surrogate mother have made a statutory declaration to the effect referred to in paragraph (b) in a form prescribed by the Minister,

that intending parent, in addition to that surrogate mother, shall be a guardian of that child.

(2) Where there are two intending parents of a child referred to in subsection (1), either or both parents may take the action referred to in that subsection to become a guardian of the child.

(3) Subject to subsection (4), an intending parent who is a guardian of a child by virtue of the operation of this section shall cease to be such guardian upon the refusal of the Circuit Court to grant a parental order stating that the child becomes the child of that parent.

(4) Subsection (3) shall not come into effect until—

(a) the ordinary time within which an appeal against the refusal referred to in that subsection has elapsed without any such appeal having been made, or

(b) if such an appeal is made—

(i) the abandonment or withdrawal of the appeal, or

(ii) the determination of the appeal by way of confirmation of such refusal,

whichever first occurs.

Guardianship of child born as result of international surrogacy agreement

6BB. (1) Where—

(a) a child is born as the result of a surrogacy agreement which has been approved under section 86 of the Act of 2024, and

(b) an intending parent and the surrogate mother have each declared that he or she, in accordance with the provisions of the Act of 2024—

(i) is, as the case requires, an intending parent or the surrogate mother of the child, and

(ii) agrees to the appointment of the intending parent as a guardian of the child,

and

(c) the intending parent and surrogate mother have made a statutory declaration to the effect referred to in paragraph (b) in a form prescribed by the Minister,

that intending parent, in addition to that surrogate mother, shall be a guardian of that child.

(2) Where there are two intending parents of a child referred to in subsection (1), either or both parents may take the action referred to in that subsection to become a guardian of the child.

(3) Subject to subsection (4), an intending parent who is a guardian of a child by virtue of the operation of this section shall cease to be such guardian upon the refusal of the Circuit Court to grant a parental order stating that the child becomes the child of that parent.

(4) Subsection (3) shall not come into effect until—

(a) the ordinary time within which an appeal against the refusal referred to in that subsection has elapsed without any such appeal having been made, or

(b) if such an appeal is made—

(i) the abandonment or withdrawal of the appeal, or

(ii) the determination of the appeal by way of confirmation of such refusal,

whichever first occurs.”.”.

The amendment seeks to amend the Guardianship of Infants Act 1964 for two main purposes. First, it aims to extend the scope of the amendment of the 1964 Act which is set out in section 146 of the Bill as initiated and only related to permitted domestic surrogacy arrangements. It will now also enable intending parents in a permitted international surrogacy arrangement to be appointed as the child's guardians alongside the surrogate mother for the post-birth period where the child is living with the intending parents but a parental order has not yet been granted. This is considered the best way to safeguard the welfare and interest of the child. I flag that there has been significant debate on this point, however. I do not need to go back into the debate. I have flagged that we will look at legal advice and tease out the ethical policy implications of that.

Amendment agreed to.

Section 156 deleted.

SECTION 157

Deputy Stephen Donnelly

I move amendment No. 228:

In page 116, between lines 12 and 13, to insert the following:

“Amendment of section 46 of Status of Children Act 1987

157. Section 46 of the Status of Children Act 1987 is amended—

(a) in subsection (1), by the substitution of “Subject to subsection (1A), where” for “Where”, and

(b) by the insertion of the following subsection after subsection (1):

“(1A) For the purposes of Part 7 or 8 of the Health (Assisted Human Reproduction) Act 2024, the reference in subsection (1) to ‘where a woman gives birth to a child’ shall be construed as a reference to ‘where a woman gives birth to a child (other than a child born as a result of AHR treatment within the meaning of that Act provided pursuant to, or for the purposes of, a permitted surrogacy or permitted international surrogacy within the meaning of that Act).’.”.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 229:

In page 116, between lines 12 and 13, to insert the following:

“Amendment of section 15 of Passports Act 2008

158. Section 15(2) of the Passports Act 2008 is amended by the substitution of the following

paragraph for paragraph (a):

“(a) there is reasonable cause to believe that the person is or may be—

(i) an Irish citizen, or

(ii) a child to whom section 11A(3) (inserted by section 156 of the Health (Assisted Human Reproduction) Act 2024) of the Irish Nationality and Citizenship Act 1956 will apply,”.”.

The amendment seeks to amend section 15 of the Passports Act 2008 to allow the issuing of an emergency travel certificate to enable a child born as a result of an approved international surrogacy to travel back to Ireland when one of the intending parents is an Irish citizen.

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 230 to 245, inclusive, are related and may be discussed together.

Deputy Stephen Donnelly

I move amendment No. 230:

In page 116, lines 23 and 24, to delete “of the Act of 2022” and substitute “, 100, 160 or 172 of the Act of 2024”.

These are technical amendments to the Civil Registration Act 2004 and relate to those that were already in section 157, in combination with the General Register Office, to register the birth of a child born in Ireland as a result of surrogacy arrangements and also to establish and maintain a register of parental orders for surrogacy. It will allow for the issuing of birth certificates for children in respect of whom a parental order has been granted, which does not include any reference to surrogacy or a surrogate mother. In addition, a person who is born as a result of surrogacy, once over 16 and applying for a copy of his or her birth certificate, will be notified that there is more information available on him or her in the national surrogacy register held by the AHRRA.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 231:

In page 116, line 27, to delete “Part 4A” and substitute “Part 2C”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 232:

In page 116, to delete lines 31 to 35 and substitute the following:

“ “ ‘Act of 2024’ means the Health (Assisted Human Reproduction) Act 2024;

‘parental order’ means an order granted under section 63(1)(a), 99(1)(a), 159 or 171 of the Act of 2024 for the transfer of the parentage of a child;

‘surrogacy agreement’ has the meaning assigned to it by the Act of 2024;”,”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 233:

In page 116, line 37, to delete “(eeeee)” and substitute “(eeeeee)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 234:

In page 117, line 1, to delete “(eeeeee)” and substitute “(eeeeeee)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 235:

In page 117, line 3, to delete “paragraph (l)” and substitute “paragraph (m)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 236:

In page 117, line 4, to delete “(m)” and substitute “(n)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 237:

In page 117, line 5, to delete “of the Act of 2022” and substitute “, 99(1)(a), 159(1) or 171(1) of the Act of 2024”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 238:

In page 117, to delete lines 8 to 40, and in page 118, to delete lines 1 to 40 and substitute the following:

“(d) by the insertion of the following Part after Part 3B:

“PART 3C

REGISTRATION OF PARENTAL ORDERS FOR SURROGACY

Definition (Part 3C)

30M. In this Part, ‘register’ means the register of parental orders for surrogacy.

Application of Part

30N. (1) Subject to subsection (2), this Part applies to parental orders.

(2) This Part shall not apply where the birth of a child named in a parental order has not already been registered in the register of births.

Entries in register on foot of parental order

30O. (1) One or both of the parents named in a parental order shall, as soon as is practicable after the order has been made, give to an tArd-Chláraitheoir a copy of the order, together with the required particulars specified in Part 2C of the First Schedule, and an tArd-Chláraitheoir shall make an entry in the register, or cause an entry to be so made.

(2) Where an tArd-Chláraitheoir receives a copy of a parental order under section 64, 100, 160 or 172 of the Act of 2024 and, after a period of 3 months from the date of the parental order, an entry has not been made in the register in relation to that copy, an tArd-Chláraitheoir shall enter or cause to be entered the required particulars in the register.

(3) Where there is an error in a parental order furnished under subsection (1), the court concerned shall give to an tArd-Chláraitheoir, within five days, a further parental order correcting the error in the register or cause it to be corrected.

(4) If a parental order is set aside, the court concerned shall inform an tArd-Chláraitheoir, within five days, and an tArd-Chláraitheoir shall cancel the entry relating to the order or cause it to be cancelled.

(5) Evidence of an entry in the register and of the facts stated therein may be given by the production of a document purporting to be a legible copy of the entry and to be certified to be a true copy by an tArd-Chláraitheoir or a person authorised in that behalf by an tArd-Chláraitheoir.

(6) In this section, ‘court’ shall be construed in accordance with section 2 of the Act of 2024.

Other entries in register

30P. Where an tArd-Chláraitheoir receives notice in writing of information from the AHRRA under section 66(2), 102(2), 162(2) or 174(2) of the Act of 2024, he or she shall enter or cause to be entered the required particulars in the register.

Who may obtain copies of entries in register

30Q. (1) Subject to subsection (2), the parents, or the guardian, or the child having reached the age of 16 years, may make an application to an tArd-Chláraitheoir and on payment to him or her of the prescribed fee, shall be given by him or her—

(a) a copy certified by him or her to be a true copy, or

(b) a copy,

of an entry in the register so long as the applicant is named as a parent or a child in the relevant parental order, or is a guardian of the child named in the parental order.

(2) A copy of an entry, referred to in subsection (1), or an extract thereof, shall omit any reference to or particulars of a personal public service number and ‘true copy’ in that subsection shall be construed accordingly.

(3) Where a person whose birth was registered in accordance with this section and who has attained the age of 16 years applies for a birth certificate, the registrar shall contact that person to inform him or her that further information relating to him or her is available from the National Surrogacy Register.

Separate index of connections between register and register of births

30R. (1) An tArd-Chláraitheoir shall maintain an index to make traceable the connection between each entry in the register and the corresponding entry in the register of births.

(2) Notwithstanding section 30Q, the index maintained under subsection (1) shall not be open to public inspection, and no information from that index shall be given to any person except by order of a court.

Certified copy of entry in register as evidence of facts stated

30S. A certified copy of an entry in the register, if purporting to be issued under the seal of Oifig an Ard-Chláraitheora, shall be received, without further proof, as evidence of the facts stated in the certified copy, and any requirement of law for the production of a certificate of birth shall be satisfied by the production of the certified copy.

Privacy of surrogacy records

30T. (1) No person other than an tArd-Chláraitheoir or a person authorised in that behalf by an tArd-Chláraitheoir shall be entitled to research the register or an index relating to the register which makes traceable an entry in the register of births and no information from the register or such an index shall be given to any person except by order of a court.

(2) A court shall not make an order under subsection (1) unless it is satisfied that it is in the best interests of any child concerned to do so.

(3) A court shall not make an order referred to in section 30R(2) unless the court is satisfied that it is in the best interests of any child concerned to make the order.”,”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 239:

In page 118, to delete lines 41 and 42 and substitute the following:

“(e) in section 61(3), by the substitution of “, to the register under Part 3B or to the register for parental orders for surrogacy or an index to any of those registers” for “or to the register under Part 3B or to an index to any of those registers”.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 240:

In page 119, line 1, to delete “(m)” and substitute “(n)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 241:

In page 119, line 2, to delete “Part 4” and substitute “Part 2B”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 242:

In page 119, line 3, to delete “PART 4A” and substitute “PART 2C”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 243:

In page 119, line 24, after “section 63(1)(a)” to insert “, 99(1)(a), 159(1) or 171(1)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 244:

In page 119, line 25, to delete “Act of 2022” and substitute “Act of 2024”.

Amendment agreed to.

Section 157, as amended, agreed to.

SECTION 158

Deputy Stephen Donnelly

I move amendment No. 245:

In page 120, to delete lines 1 and 2 and substitute the following:

“ “(m) section 63(1)(a), 99(1)(a), 159 or 171 of the Health (Assisted Human Reproduction) Act 2024.”.”.

Amendment agreed to.

Section 158, as amended, agreed to.

NEW SECTION

Deputy Róisín Shortall

I move amendment No. 246:

In page 120, between lines 2 and 3, to insert the following:

“Insertion of section 4A into Act of 2015

159. The Act of 2015 is amended by the insertion of the following section after section 4:

“Best interests of the child

4A. Where, in any proceedings before any court, the parentage of a child is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.”.”.

We have made a lot of progress, but I will not rush this part. This amendment would insert a section into the Children and Family Relationships Act 2015 to state that "the best interests of the child" are "the paramount consideration". This is specifically in relation to ensuring that the courts view the best interests of the child as the paramount consideration. There are references to "the best interests of the child" elsewhere, but this would require the courts to take that view. This was also, as I referenced on an earlier occasion, one of the recommendations made in the report by Special Rapporteur on Child Protection, who said that this legislation:

... should provide that the best interests of the child are the first and paramount consideration for all bodies (including courts and regulatory authorities) exercising functions under the legislation.

It does not provide for that at the moment.

The LGBT+ Parenting Alliance argues that “Subjective assessments and discretionary provisions are a cornerstone of family law legislation”. That applies in relation to guardianship, custody, maintenance, etc. The courts therefore need to have discretion in this regard. The AHR Bill, as currently drafted, and the Children and Family Relationships Act 2015 are outliers in this regard because they do not contain that provision. While there is a provision for the best interest test, this is not equivalent to giving the courts the discretion. That is in relation to amendment No. 246.

Amendment No. 247 would ensure that all non-clinical conceptions up to the paragraph dealing with “coming into operation” would be covered, as opposed to just those that took place until 4 May 2020, which is the date on which the relevant section of the 2015 Act commenced. I referenced delays in commencing legislation and there has been a five-year delay in commencing this particular section. That is the basis for setting the date of 4 May for non-clinical conceptions. I do not think it is good practice to do that and I think we should update that.

I also want to make a couple of points about this section. The 2015 Act allowed two same-sex intended parents to be listed on a child's birth certificate for the first time, but only if it was within the strict framework of that Act. The Act deals specifically with donor-assisted human reproduction, where one intending parent carries the child. However, the current provisions of the 2015 Act exclude a number of situations. I recognise that the Minister has already given a commitment to look at a couple of those ahead of Report Stage, namely, children conceived outside of Ireland and also children born outside of Ireland.

There are two other areas that need to be addressed, namely, children conceived by a known donor prior to May 2020 and children conceived in non-clinical settings. Certainly, children being conceived in non-clinical settings would have been a common enough practice. I do not see why they or children with a known donor prior to May 2020 should be excluded. Could the Minister explain the thinking behind why that is the case? As I have said, the Minister has committed to looking at the last two groups, namely, children born outside Ireland and children conceived outside Ireland. I would like to know his thinking on the other two categories. A Bill has been written by LGBT Ireland to deal with these exclusions and the Labour Party introduced it recently, as the Minister will be aware.

There is also the issue of the age cut-off for retrospective legal recognition as parents. I ask the Minister to clarify if there is an age cut-off in relation to the retrospective provisions contained in this amendment to the Children and Family Relationships Act 2015. There are concerns that those who have already turned 18 will not be able to have both their parents recognised, and that this will only be possible for those who are under 18. We need clarification on those points.

Deputy Stephen Donnelly

I thank the Deputy for her amendments. I have gone through these and I have had several meetings, as have my officials, with the stakeholder groups. There were quite a number of asks in terms of updating this. To the greatest extent possible, I have pushed all three Departments and legal advisers to accommodate this. In many cases we have done so, and in some cases it has not been possible. We have dealt with the known donor issue in the Children and Family Relationships Act 2015-----

Deputy Róisín Shortall

Does that deal with situations prior to May 2020?

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

Okay.

Deputy Stephen Donnelly

That is in this version of the Bill.

Deputy Róisín Shortall

Okay, that is fine.

Deputy Stephen Donnelly

That is in these amendments. The reciprocal IVF situation, where a woman is not considered a donor, is dealt with in these amendments as well. That has been dealt with.

Deputy Róisín Shortall

Okay.

Deputy Stephen Donnelly

There are various pieces to this. We have dealt with the issue of the known donor.

Regarding the inclusion of children born outside Ireland and children conceived outside Ireland, I am very sympathetic to that. The initial view was that it was not possible. We have pushed and pushed and it is now being looked at again. The Department of Justice is very involved in looking at this. This is really a citizenship issue and not a core health competence. We are therefore taking our guidance from the Department of Justice on this. It is looking at this to see what can be done. From a policy perspective and an ethical perspective, I have an awful lot of sympathy for it, so if it can be done it will certainly have my full support.

There is no age cut-off in terms of any retrospective issue at all.

Deputy Róisín Shortall

Okay. That is good. Thank you.

Deputy Stephen Donnelly

The last point is a very specific point around the date of May 2020 and a non-clinical setting. The officials, and Dr. Edward Keegan in particular, know this backwards. Dr. Keegan may come in if I am incorrect on this, but the argument, as I understand it, that is pre-2020 it was allowed because no regulatory framework was in place. Therefore, it would not be reasonable to tell someone they had not complied because there was nothing to comply with. However, post May 2020, a very clear framework was in place and people needed to comply with it. Whatever any of our personal views may be about clinical versus non-clinical settings, as I said in one of our previous settings, I pushed very hard for non-clinical settings to be included. This included suggesting sending a nurse or a clinician to the house to make sure there is validation. This is all a matter of the rights of the child. It was not possible to get that issue over the line. The advice I have on the date of May 2020 is that it was very clear from May 2020 what people needed to do. We are not proposing to retrospectively interfere with the regulatory framework that was in place. I can understand why some people might want this to be done. They will say that they did not comply and that they want that to be dealt with retrospectively, but that is not something we are necessarily looking at. The view is that from May 2020, there was and is a regulatory framework in place and that needs to be respected.

I am sure the Deputy will take my bona fides on this. We have pushed to get as many of these amendments into the Children and Family Relationships Act 2015 as possible. We have gotten a lot. By my count, nine proposals came to us.

Six of them are over the line and we are still working to see what can be done on two of them. There was one proposal which was a "No". That is this one relating to post May 2020. On all the others, we have either done them or were are still seeking to do them.

Deputy Róisín Shortall

I thank the Minister for that clarification. On the amendments, then?

Deputy Stephen Donnelly

For that reason I do not propose to accept the amendment.

Deputy Róisín Shortall

Sorry, that was just a clarification I was seeking on amendment No. 246, on the best interests of the child.

Deputy Stephen Donnelly

The best interests of the child are considered by the courts. The question we are asking is whether this concept of it being paramount trumps everything else. On future international domestic surrogacy, no, but in relation to it being retrospective, what we have before us here is also a "No". I am not satisfied with that. I think there is no moral hazard for the retrospective part and I want to look to inserting this clause about the paramount importance of the child for retrospective purposes, but not in the interim period because that is forward looking and there is moral hazard attached to that.

Deputy Róisín Shortall

Will the Minister expand on the point about moral hazard?

Deputy Stephen Donnelly

There is a concern that people will say they will not comply with the regulations and do whatever they believe they need to do to avail of surrogacy and then go to the court and say the best interests of the child trump any other aspect of the legislation. Painstaking work has been done putting layers and layers of protection for the child and for the surrogate mother and we are not proposing for the forward-looking part that all of that can be discarded if the judge believes it should be done. We are saying we have a very clear, legally binding framework for the future that has to be complied with.

Deputy David Cullinane

To avoid intending parents bypassing the process.

Deputy Stephen Donnelly

Bypassing all or some of the safeguards that have been put in place to protect the child and the surrogate mother, yes. Critically, however, for the retrospective part, I am changing what is in the draft to say that for the retrospective part, it is relevant to say it is of paramount importance.

Deputy Róisín Shortall

Okay. I welcome that in respect of retrospective cases. I want to think a bit more about the prospective cases. I am not sure there is a likelihood of what the Minister is suggesting happing.

An Cathaoirleach

The Deputy will have tonight to think about it because we will be finishing the meeting now.

Deputy Róisín Shortall

I am saying I will think about it for Report Stage. On that basis I will withdraw it, but we will reconsider it for Report Stage.

Deputy Stephen Donnelly

We might talk further about it offline if the Deputy wishes.

Amendment, by leave, withdrawn.

SECTION 159

Deputy Stephen Donnelly

I move amendment No. 247:

In page 120, between lines 4 and 5, to insert the following:

“(a) in section 20 -

(i) in subsection (1)—

(I) by the substitution of the following paragraph for paragraph (b):

“(b) the child was born as a result of a DAHR procedure that was performed before the date on which this section came into operation that —

(i) was performed in the State, or

(ii) both —

(I) was performed outside the State, and

(II) where it was performed in a DAHR facility outside the State, was performed by a person authorised to do so under the law of the place where the procedure was performed,”,

(II) by the substitution of the following paragraph for paragraph (d):

“(d) subject to paragraph (g), at the time referred to in paragraph (c), the donor who provided a gamete that was used in the DAHR procedure —

(i) was unknown to the mother of the child and the person referred to in paragraph (c), and

(ii) was not an intending parent of the child,”,

(III) in paragraph (e), by the substitution of “paragraph (c),” for “paragraph (c), and”,

(IV) in paragraph (f), by the substitution of “parent,” for “parent.”, and

(V) by the insertion of the following paragraphs after paragraph (f):

“(g) subject to paragraphs (h) and (i), where the donor who provided a gamete that was used in the DAHR procedure was known to the mother of the child and the person referred to in paragraph (c), the donor consents to the making of the declaration concerned under section 21 or 22 and, by virtue of giving such consent, confirms that he or she understands that, under the law of the State, he or she —

(i) is not a parent of the child, and

(ii) has no parental rights or duties in respect of the child,

(h) a consent referred to in paragraph (g) given by the donor is given —

(i) voluntarily, and

(ii) subject to provisions of the Assisted Decision-Making (Capacity) Act 2015, when he or she had the capacity (within the meaning of that Act) to do so,

and

(i) the District Court or Circuit Court, as appropriate, may waive the requirement under paragraph (g) of consent from the donor referred to in that paragraph if he or she -

(i) is deceased, or

(ii) cannot be located after reasonable efforts have been made to find him or her.”,

and

(ii) in subsection (2), by the substitution of the following definitions for the definition of “DAHR procedure”:

“ ‘DAHR procedure’ includes a DAHR procedure performed —

(a) other than in a DAHR facility,

(b) outside the State, or

(c) other than in a DAHR facility and outside the State;

‘donor’ means a person who provided a gamete for a DAHR procedure, other than the mother or intending parent of the child born as a result of such procedure;”,

(b) In section 21, by the insertion of the following subsection after subsection (4):

“(4A) Where section 20(1)(g) applies, an application under this section shall include an affidavit sworn by the donor stating that he or she —

(a) consents to the making of a declaration under this section, and

(b) understands that, under the law of the State, he or she is not a parent of the child and has no parental rights or duties in respect of the child.”,

and

(c) in section 22, by the insertion of the following subsection after subsection (5):

“(5A) Where section 20(1)(g) applies, an application under this section shall include an affidavit sworn by the donor stating that he or she —

(a) consents to the making of a declaration under this section, and

(b) understands that, under the law of the State, he or she is not a parent of the child and has no parental rights or duties in respect of the child.”,”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 247:

In paragraph (a)(i)(I), in the inserted paragraph (b), to delete “section” and substitute “paragraph”.

Amendment, by leave, withdrawn.

Amendment No. 247 agreed to.

Section 159, as amended, agreed to.

SECTION 160

Deputy Stephen Donnelly

I move amendment No. 248:

In page 121, line 24, to delete “2022” and substitute “2024”.

Amendment agreed to.

Section 160, as amended, agreed to.

SECTION 161

Deputy Stephen Donnelly

I move amendment No. 249:

In page 121, line 28, to delete “Act of 2022” and substitute “Act of 2024”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 250:

In page 121, line 35, to delete “Act of 2022” and substitute “Act of 2024”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 251:

In page 122, to delete lines 1 and 2 and substitute the following:

“(3) In this section, ‘Act of 2024’ means the Health (Assisted Human Reproduction) Act 2024.”.”.

Amendment agreed to.

Section 161, as amended, agreed to.

Schedules 1 to 7, inclusive, agreed to.

TITLE

Deputy Stephen Donnelly

I move amendment No. 252:

In page 11, line 6, after “within” to insert “or, in relation to certain persons connected with the State, outside".

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 253:

In page 11, line 7, to delete “gametes or embryos, or both, for the purposes of establishing a pregnancy” and substitute “gametes, embryos or tissues, or any combination thereof, for the purposes of establishing, or preserving the possibility of establishing, a pregnancy”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 254:

In page 11, line 8, after “providing” to insert “, within the State,”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 255:

In page 11, line 10, after “as” to insert “ “An tÚdarás Rialála um Atáirgeadh Daonna Cuidithe” or, in the English language,”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 256:

In page 11, line 22, after “consequential” to insert “and other”.

Amendment agreed to.

Title, as amended, agreed to.

An Cathaoirleach

Pursuant to Standing Order 187(3), the clerk to the committee will report specially to the Dáil that the committee has amended the Title.

Bill reported with amendments.

An Cathaoirleach

I thank the Minister for Health, Deputy Stephen Donnelly, and his officials for attending today's meeting and for the considerable work that has been done on this matter.

Deputy Stephen Donnelly

I thank the Cathaoirleach.