Select Committee on Health díospóireacht -
Wednesday, 21 Feb 2024

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

An Cathaoirleach

Apologies have been received from Deputy Cathal Crowe. I believe Deputy Cullinane is on his way; he is doing an interview and said he would be a few minutes late.

The committee has been convened to continue its consideration of the Committee Stage of Health (Assisted Human Reproduction) Bill 2022. Committee Stage consideration got off to a satisfactory start when we first discussed this on 24 January. I thank the Minister for Health for providing briefing documentation in the meantime as requested by the committee at that meeting. Today we will continue from section 35 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.

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

I welcome the Minister for Health, Deputy Stephen Donnelly, to our meeting this morning. A total of 256 amendments were tabled, of which 79 were considered at our first meeting and a grouping list has been provided to members. I also welcome the Minister's officials, whom, I understand, the Minister may invite to clarify specific issues which may arise. Would to the Minister like to start?

Minister for Health (Deputy Stephen Donnelly)

I am very happy to get into this. Today's session is important. I hope we can work our way through the surrogacy aspect. This will be the first legislation of its type anywhere in the world that I and my officials are aware of. I thank the committee members. I know that a lot of time was spent by the surrogacy committee and by colleagues here in the health committee. Very thoughtful amendments have been tabled. The last session was very useful and I think this will also be a very useful session. We have reflected on and discussed at length the various amendments colleagues have submitted and we will go through them today. It will be a good session today if we can get through the very substantial amendments on surrogacy that we are hoping to put in place.

An Cathaoirleach

I believe the Minister may want to bring in his officials.

Deputy Stephen Donnelly

If I can, I would like to do so if needed.

An Cathaoirleach

Is that agreed by members? Agreed.

SECTION 35

Deputy Gino Kenny

I move amendment No. 80:

In page 38, line 30, after “means” to insert “loss of income and”.

An Cathaoirleach

Does the Deputy wish to speak on the amendment?

Deputy Gino Kenny

I want to hear what the Minister has to say first.

Deputy Stephen Donnelly

I thank Deputy Kenny for his amendment which adds the phrase "loss of income". Deputies Shortall and Cullinane have tabled similar amendments. It was discussed in the previous session. I am inclined to include it but I would like to take some time between now and Report Stage to make sure that whatever language we use aligns with the 2015 Act and anything else within the Bill that may need to be aligned with it. The point has been well made by Deputy Kenny, as well as by Deputies Shortall and Cullinane that loss of income should be included.

Amendment, by leave, withdrawn.

Section 35 agreed to.

Amendment No. 81 not moved.

Section 36 agreed to.

SECTION 37

Deputy Stephen Donnelly

I move amendment No. 82:

In page 39, line 28, to delete “in anonymised form” and substitute “without identifying the relevant person concerned”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 83:

In page 39, to delete lines 36 to 38, and in page 40, to delete lines 1 and 2 and substitute the following:

“(4) In this section—

“registered medical practitioner” includes a medical practitioner who is the equivalent, in another jurisdiction, of a registered medical practitioner;

“relevant person” means—

(a) a relevant donor (G),

(b) a relevant donor (E),

(c) a child (AHR), or

(d) an adult (AHR).”.

Amendment agreed to.

Section 37, as amended, agreed to.

SECTION 38

Deputy Stephen Donnelly

I move amendment No. 84:

In page 40, line 7, after “(G)” to insert “or the child’s tissues for a relevant storage (T)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 85:

In page 40, line 17, after “(G)” to insert “or a relevant storage (T)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 86:

In page 40, lines 22 and 23, to delete “referred to in subsection (1) dies, the relevant storer (G)” and substitute the following:

“or a relevant storage (T) referred to in subsection (1) dies, the relevant storer (G) or relevant storer (T), as the case may be,”.

Amendment agreed to.

Section 38, as amended, agreed to.

Sections 39 and 40 agreed to.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 87:

In page 45, between lines 25 and 26, to insert the following:

“Disposal of relevant storage (T)

41. (1) (a) Subject to subsections (2) and (3), the relevant storer (T) of a relevant storage (T) shall dispose of such storage as soon as is practicable after—

(i) if applicable, the shorter storage period (T) has elapsed, or

(ii) in any other case—

(I) the period specified for the purposes of this clause in regulations made under paragraph (b) has elapsed, or

(II) where no such period stands so specified, the period of 10 years has elapsed from the date on which such storage was commenced.

(b) Subject to paragraphs (c) and (d), the Minister may make regulations to specify a period for the purposes of clause (I) of subparagraph (ii) of paragraph (a).

(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) the current state of medical evidence as to the viability of the use of tissues in AHR treatment by reference to the length of the period for which the tissues were stored;

(ii) where relevant, the age of the person for whom the tissues were stored for future use in the provision of AHR treatment to that person;

(iii) where relevant, the ages of the intending parents (or, in the case of a single intending parent, the age of that parent) of any child that may be born as the result of the future use in the provision of AHR treatment of tissues that were stored for such use.

(d) On and after the establishment day, the Minister shall not make regulations under paragraph (b) except after consultation with the AHRRA.

(2) Subject to subsection (8), an eligible person may make an application in the specified form (in this section referred to as a “section 41 application”), before the expiration of the relevant storage period (T) for the relevant storage (T) the subject of the application where such period falls within paragraph (b) of the definition of “relevant storage period (T)”, to the AHRRA to grant an extension to such period.

(3) Subject to subsection (6), the AHRRA shall determine a section 41 application—

(a) where it is satisfied that, in all the circumstances of the case, there are reasonable grounds for granting the extension sought by the application (or part only of such extension), by notice in writing given to the applicant and the relevant storer (T), granting such extension (or, as the case may be, part only of such extension), or

(b) in any other case, by notice in writing given to the applicant, refusing to grant such extension.

(4) Where the AHRRA under subsection (3)—

(a) grants part only of the extension sought to the relevant storage period (T) for a relevant storage (T), or

(b) refuses to grant any such extension,

it shall, in the notice concerned referred to in that subsection, state its reasons for such partial grant or refusal, as the case may be.

(5) The relevant storer (T) shall, not less than six months before the expiration of the relevant storage period (T) for a relevant storage (T), make reasonable efforts to give a notice in the specified form to an eligible person—

(a) advising such person (and without prejudice to the generality of section 105) of the date on which such period ends, and

(b) to which is attached a statement as to the effect of this section.

(6) (a) Paragraph (b) applies where the AHRRA is minded to determine a section 41 application by—

(i) granting part only of the extension sought to the relevant storage period (T) for a relevant storage (T), or

(ii) refusing to grant any such extension.

(b) The AHRRA shall give a notice in writing to the applicant stating—

(i) how the AHRRA is minded to determine the application as specified in paragraph (a) and setting out the AHRRA’s reasons why it is so minded, and

(ii) 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.

(7) For the avoidance of doubt, it is hereby declared that subsection (6) only applies once to the same section 41 application.

(8) Where a combination of shorter storage periods (T) referred to in section 18(9)(c) applicable to the same relevant storage (T) results in the last shorter storage period (T) of that combination taking the combined periods up to the period specified in paragraph (b) of the definition of “relevant storage period (T)”, subsections (2) to (7) shall, with all necessary modifications, apply to the period the subject of that last shorter storage period (T) as they apply to a period which falls within paragraph (b) of the definition of “relevant storage period (T)”.

(9) (a) Where there has been a failure to make one or more than one payment to the relevant storer (T) of a relevant storage (T) for such storage, the storer may, by notice in writing (and to which is attached a copy of this subsection) given to the person who, under the terms and conditions on which the storage was made, is required to make such payment—

(i) request the person to make the payment, and

(ii) advise the person to read the copy of this subsection attached to the notice as to the consequences of continuing to fail to make the payment.

(b) Subject to paragraph (c), the relevant storer (T) may dispose of the tissues concerned where three months have elapsed from the date of issue of the notice concerned under paragraph (a) without the payment the subject of the notice having been made.

(c) Where section 38 applies, the relevant storer (T) may not exercise the power under paragraph (b) except with the consent of the AHRRA.

(10) In this section—

“eligible person”, in relation to a relevant storage (T), means—

(a) subject to paragraph (b), the person for whom the tissues the subject of such storage are being stored, or

(b) where section 38 applies and the child whose tissues are the subject of such storage has not attained the age of 18 years, the relevant person (within the meaning of section 38(4)) who gave the section 18 consent concerned referred to in section 38(1);

“extension” includes further extension.”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 87:

In subsection (9)(a), to delete “make one or more than one payment to” and substitute “engage with”.

Currently the Bill links storage of embryos and gametes to payment. The concern is that this could introduce all kinds of complications for AHR professionals, who have made this point to the Minister already. Many would rather exercise discretion in situations where a couple or a person is struggling to pay. This particular amendment would link storage to a requirement to engage with a storage facility rather than an ability to pay. We talked about this. There may be reasons for somebody not being in a position to pay at a particular time and there would be an understanding of the reason for that by the professionals. There is a requirement for some element of discretion in that. It seems very hard and fast as it is at the moment. I ask the Minister to look at that.

Deputy Stephen Donnelly

Yes, we discussed it. We were in agreement that the Bill as drafted would provide that if you miss one payment, that is it, and that is not really satisfactory. From memory, I think we also agreed it should not be fully open ended and that the storage facility will need some ability to act, but that reasonable safeguards and common sense need to be put around it. I committed to coming back on Report Stage, having reflected on it. Again, if committee members would like an informal briefing between Committee Stage and Report Stage on the proposals, I can facilitate that. I have committed to taking away several of the amendments from Deputies Shortall and Kenny in respect of income and so on. To that end, we can arrange an informal briefing session on where we have got to with the Report Stage amendments.

Deputy Gino Kenny

Will that be before our next session?

Deputy Stephen Donnelly

It can certainly be before the next session if members want, but these will be Report Stage amendments, so I was thinking it might be between Committee Stage and Report Stage.

Deputy Gino Kenny

Okay.

Deputy Róisín Shortall

All these amendments relate to the same principle involved in that. I am happy to withdraw them on the basis of the Minister’s commitment and we can have another look at them on Report Stage.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 2 to amendment No. 87:

In subsection (9)(a), to delete “make such payment” and substitute “engage”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 3 to amendment No. 87:

In subsection (9)(a)(i), to delete “make the payment” and substitute “engage with the relevant storer (T)”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 4 to amendment No. 87:

In subsection (9)(a)(ii), to delete “make the payment” and substitute “engage with the relevant storer (T)”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 5 to amendment No. 87:

In subsection (9)(b), to delete “payment the subject of the notice having been made” and substitute “engagement of the subject of the notice”.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Róisín Shortall

I move amendment No. 88:

In page 45, to delete lines 36 and 37 and substitute the following:

“ “surviving partner” means the surviving spouse, civil partner or cohabitant of a deceased person at the time of the person’s death.”.

This relates to surviving partners of the deceased. Is the Minister considering such an amendment for Report Stage?

Deputy Stephen Donnelly

Yes.

Amendment, by leave, withdrawn.

Section 41 deleted.

Section 42 agreed to.

SECTION 43

An Cathaoirleach

Amendments Nos. 89; No. 1 to No. 89; Nos. 90 to 92, inclusive; No. 93; No. 1 to No. 93; No. 94; Nos. 1 to 3, inclusive, to No. 94; No. 95; No. 96; Nos. 1 to 4, inclusive, to No. 96; and No. 189 are related and may be discussed together. Is that agreed? Agreed.

Deputy Stephen Donnelly

I move amendment No. 89:

In page 46, to delete lines 18 to 34, and in page 47, to delete lines 1 to 11 and substitute the following:

“ “AHR treatment to which this Part applies” means—

(a) PGT,

(b) HLA matching, and

(c) sex selection;

“genetic counselling”, in relation to AHR treatment to which this Part applies, means a service provided by a genetic counsellor, with clinical governance provided by a relevant specialist in any case where the genetic counsellor is not also a relevant specialist, under which he or she counsels a person regarding—

(a) the potential risks and implications arising from and after the provision of such treatment, and

(b) other options (if any) available in lieu of such treatment;

“genetic counsellor”, in relation to AHR treatment to which this Part applies, means a person who has the requisite skills and judgment to provide genetic counselling as regards such treatment by virtue of—

(a) holding a qualification prescribed (following, on and after the establishment day, consultation by the Minister with the AHRRA) for the purposes of this definition,

(b) having the practical experience prescribed (following, on and after the establishment day, consultation by the Minister with the AHRRA) for the purposes of this definition, or

(c) holding a qualification, and having the practical experience, prescribed (following, on and after the establishment day, consultation by the Minister with the AHRRA) for the purposes of this definition;

“genetic disease” means a disease caused by single gene or chromosomal abnormalities that can be inherited and that, on the basis of existing scientific and medical evidence, confers a high risk on the person with the disease of having—

(a) a serious physical or mental disability,

(b) a serious illness, or

(c) a fatal condition;

“HLA matching” means an AHR treatment using PGT to test and select an embryo for implantation in the womb of a woman for the purpose of matching the tissue of a child who is born as a result of the treatment with the tissue of a child who suffers from a life-limiting condition;

“PGT” means pre-implantation genetic testing;

“PGT-A” means PGT which falls within paragraph (a) of the definition of “pre-implantation genetic testing”;

“PGT-M” means PGT which falls within paragraph (b) of the definition of “pre-implantation genetic testing”;

“PGT-SR” means PGT which falls within paragraph (c) of the definition of “pre-implantation genetic testing”;

“pre-implantation genetic testing” means a test performed to analyse the DNA (deoxyribonucleic acid) of embryos for the purpose of determining genetic abnormalities, or for the undertaking of HLA matching, and includes—

(a) such testing for aneuploidies (being embryos with an abnormal chromosomal complement),

(b) such testing for single gene defects,

(c) such testing for chromosomal structural rearrangements, and

(d) such other testing prescribed (following, on and after the establishment day, consultation by the Minister with the AHRRA) for the purposes of this definition;”.

I propose, through amendments Nos. 89, 91 and 92, to delete much of section 43 and replace it with new terminology and definitions. Much of the terminology has been updated since the Bill was drafted, which goes to the rapidly evolving nature of what we are legislating for. In broad terms, what was termed in the published Bill as pre-implantation genetic diagnosis, PGD, is now described as either PGT-M, for mono-genetic defects, or PGT-SR, for chromosomal structural management, while pre-implantation genetic screening, PGS, has become PGT-A, for aneuploidy, in the amendments. We are also looking to add definitions for genetic counselling and genetic counsellor.

Amendments Nos. 93 and 94 will delete sections 45 and 46 and replace them with sections reflecting the new terms "PGT-M", "PGT-SR" and "PGT-A". Although the terminology may have changed, the specific criteria set out in the new section 45 to be met in order for PGT-M or PGT-SR to be provided remains essentially the same as in the Bill as initiated. PGT-A, on the other hand, can be a rather controversial practice, and the new section 46 will need to be re-examined by my officials, in conjunction with experts in the field, to ensure the criteria for its provision are sufficiently tight.

Amendment No. 96 will introduce a new section in respect of genetic counselling. Those wishing to avail of PGT-M or PGT-SR will be required to undertake pre-testing genetic counselling. For PGT-A, it will be only in the relatively small proportion of cases where a complex chromosomal variant is discovered in the testing process that genetic counselling will be mandatory before any further AHR treatment provided.

There is currently no registration or accreditation framework in Ireland in respect of genetic counsellors. In practice, however, those currently providing genetic counselling services within the State are registered at UK or EU level. The UK level is the Genetic Counsellor Registration Board and the EU level is the European Board of Medical Genetics.

Amendments Nos. 95 and 109 relate, respectively, to a minor editing change and a change consequential to changing the term "PGD" to "PGT" later in the Bill.

Deputy Neasa Hourigan

On a point of clarity, we are in the realm of genetic testing and, obviously, any testing like that will not be 100% correct all the time. That is just not possible. Has the Department begun examining the amendments coming out of the termination legislation? Is that happening at the same time and have we begun that work?

Deputy Stephen Donnelly

Could the Deputy clarify which legislation she is referring to?

Deputy Neasa Hourigan

I am referring to the review of the abortion law.

Deputy Stephen Donnelly

The Maria O'Shea review.

Deputy Neasa Hourigan

Yes. Has work begun on the amendments to that legislation, now that we are talking about genetic testing?

Deputy Stephen Donnelly

Does the Deputy mean the recommendations from the review?

Deputy Neasa Hourigan

Yes. Has the Department begun writing amendments on that issue?

Deputy Stephen Donnelly

Two different things are going on with the Maria O'Shea review. One is that the vast majority of the recommendations, which are operational recommendations, have been taken on by the national women and infants programme and are being rolled out. The Deputy will be aware that, for example, we recently added more hospitals providing services and a lot of important operational things are going on.

As for any legislative amendments, no, they are-----

Deputy Neasa Hourigan

To be clear, no work has begun on any legislative amendments.

Deputy Stephen Donnelly

There has been no Government decision for the Department to begin any work yet.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 89:

To delete the definitions of “PGT-A”, “PGT-M” and “PGT-SR”.

I will speak to my amendments to amendments Nos. 89, 93, 94 and 96, which all concern the same issue.

It is my understanding that the Minister has brought forward his amendments on the advice of AHR professionals following engagement with them. However, I also understand that the use of the terms "PGT-A", "PGT-M" and "PGT-SR" is now regarded as being overly specific and could be out of date very soon. The science in this area is moving very quickly and the concern among professionals is that this could be out of date very quickly. My amendments would ensure that the legislation is future-proofed and not overly prescriptive so I ask the Minister to consider that. It is a bit of a shift in attitude from AHR professionals but they are making that point very strongly and it is worth taking it on board.

I also want to speak about amendment No. 90. Are we speaking about all of the group at this stage?

An Cathaoirleach

The Deputy can but I will be taking them individually anyway.

Deputy Róisín Shortall

Because they are all in the same group.

An Cathaoirleach

We are talking about all those amendments.

Deputy Róisín Shortall

Regarding amendment No. 90, AHR professionals have said that given the small pool of genetics specialists in Ireland and the vast increase in patients requiring genetic services, this amendment should be made to include specialists with equivalent medical experience in the definition of "relevant specialist". Again, the situation is moving quite quickly and the science is moving quite quickly and we may be taking too narrow a view of genetics specialists in this. I ask the Minister to look at that on the basis of the AHR professionals' position on it.

Deputy Stephen Donnelly

I do not have a personal view on the use of the terms "PGT-A", "PGT-M" and "PGT-SR". This is way beyond my scientific knowledge. I understand that at least one of the people involved has a view that we should keep the previous naming because it future-proofs it. I appreciate that this is exactly what the Deputy is trying to do. I asked the officials to look into it and consult more broadly. The very clear advice they got back was that this is the best way to go. In addition to that, in order to try to future-proof it, within the definition of pre-implantation genetic testing we have added a provision for potential new types of PGT to be prescribed by the Minister in consultation with the AHRRA. In other words, it can be future-proofed through regulations or a statutory instrument. I do not have a personal view. The advice the officials received strongly was to stick with this and then add in the clause so that we can do it through regulation. That is what I am going with.

Regarding the Deputy's second point, there is a lot of merit in giving the AHRRA some scope to define the genetic counsellors or specialists. We have very few of them here. It is a very small population base. If we are to do it, we will need a very clear structure in terms of clinical governance guidelines and mutual recognition. It is more complex now with Brexit, for example. We have obviously have mutual recognition with the UK on all manner of different healthcare issues. I have asked the officials to work with the various clinical governance groups to see what would be an appropriate framework to put in place. We will look at the broad point the Deputy is making around whether we can give the AHRRA, or some other appropriate body such as the Medical Council, the power to say "yes, we recognise the following qualifications in the UK or the EU and they fall under the auspices of this".

Deputy Róisín Shortall

For Report Stage?

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

With the Minister's own amendment?

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

I welcome that. I have one other point regarding this group of amendments. There is some concern about emotive language being used. As an example, on page 46, line 28, there is a reference to "has a condition". I propose that we change the phrase "suffers from". That kind of language is used in multiple sections. I outlined just one example. The use of "suffers from" is considered ableist language by many campaigners.

Deputy Stephen Donnelly

I am more than happy to take that up. If there is no legal difference and if it works for patients, I am certainly open to it. I will ask the officials to take a look at it. As long as it is legally as rigorous, if that is what patients want, why not?

Deputy Róisín Shortall

I welcome that.

An Cathaoirleach

Does Deputy Durkan want to come in on the amendments we are talking about?

Deputy Bernard J. Durkan

It is the same group of amendments. The Minister referred to legal requirements. The essential thing is to make sure insofar as we can - we cannot be absolutely certain about anything - that a man or woman is not faced with a big legal battle in the middle of all the other trauma that is ongoing for him or her. It is a significant time in their lives. If something can go wrong, usually it will go wrong. The Bill states that AHR treatment shall not provide PGT-M or PGT-SR except where "the provider is satisfied, founded on a relevant opinion" that this is necessary. I suggest that "relevant opinion" could be contested at great length. The difficulty I could see arising - we have all dealt with these individual cases previously - is where a legal problem stops everything, and everything is frozen. Even though everything possible has been done to avoid it, I am concerned about whether there has been or will be enough oversight, supervision and cross-checking in dealing with this group of amendments along the lines I suggested with particular reference to legal issues that may or may not arise. There may be challenges in all directions because what happens in these cases nowadays is the competence of the authorised person giving the information is usually challenged by somebody else on legal grounds and it is about something totally different from what it started out as. I would like to be assured that adequate provision has been made to avoid as far as possible those kinds of scenarios.

Deputy Stephen Donnelly

That would be the default anyway but I will ask the officials to look at it through that lens as well.

An Cathaoirleach

Does anyone else wish to come in?

Deputy Róisín Shortall

Another point I wish to raise regarding amendment No. 97, regarding residency requirements, which is in this group-----

An Cathaoirleach

We have not got to that yet.

Deputy Róisín Shortall

It is in the same group we are talking about.

An Cathaoirleach

I do not think so. The group contains amendments Nos. 94 to 96, inclusive.

Deputy Róisín Shortall

Sorry, there is a semi-colon after No. 189.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Róisín Shortall

I move amendment No. 90:

In page 47, line 16, after "2007" to insert "or a specialist deemed by the AHRRA to be equivalent".

Amendment, by leave, withdrawn.

Deputy Stephen Donnelly

I move amendment No. 91:

In page 47, line 18, to delete “sex;” and substitute “sex.”

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 92:

In page 47, to delete lines 19 and 20.

Amendment agreed to.

Section 43, as amended, agreed to.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 93:

In page 47, between lines 20 and 21, to insert the following:

“PGT-M and PGT-SR

44. (1) An AHR treatment provider shall not provide PGT-M or PGT-SR except in accordance with section 46 or 47 where—

(a) the provider is satisfied, founded on a relevant opinion, that such provision is necessary to detect whether or not there is a significant risk of a child being born with a genetic disease the name of which is for the time being entered in the Register of Genetic Diseases, or

(b) such provision is for the purposes of HLA matching.

(2) In this section, “relevant opinion”, in relation to a risk referred to in subsection (1)(a),

means the opinion in writing of a relevant specialist that there is such a risk.”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 93:

In subsection (1), to delete “PGT-M or PGT-SR” and substitute “PGT for single gene defects or chromosomal rearrangements”.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Section 44 deleted.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 94:

In page 47, between lines 30 and 31, to insert the following:

“PGT-A

45. An AHR treatment provider shall not provide PGT-A except for the purposes of genetically testing an embryo for a chromosomal abnormality that may affect the capacity of the embryo to result in a live birth where—

(a) the woman is, in the opinion of a registered medical practitioner, of advanced reproductive age,

(b) the woman has had recurrent implantation failures or miscarriages,

(c) severe male factor infertility has been indicated,

(d) PGT-M or PGT-SR is being undertaken, or

(e) such testing has been indicated in accordance with any additional criteria that has been prescribed (following, on and after the establishment day, consultation by the Minister with the AHRRA).”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 94:

In section 45, line 1, to delete “PGT-A” and substitute “PGT for aneuploidy”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 2 to amendment No. 94:

In paragraph (c), to delete “indicated” and substitute “diagnosed”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 3 to amendment No. 94:

In paragraph (d), to delete “PGT-M or PGT-SR” and substitute “PGT for single gene defects or chromosomal rearrangements”.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Section 45 deleted.

Section 46 agreed to.

SECTION 47

Deputy Stephen Donnelly

I move amendment No. 95:

In page 48, line 24, after “specialist,” to insert “such treatment is indicated because”.

Amendment agreed to.

Section 47, as amended, agreed to.

Section 48 agreed to.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 96:

In page 48, after line 37, to insert the following:

“Genetic counselling

49. (1) Without prejudice to the generality of section 17, an AHR treatment provider shall not provide any relevant AHR treatment to a person seeking such treatment unless the provider is satisfied that the person and the relevant person have received genetic counselling in relation to such treatment.

(2) Where PGT-A has been provided to a person and that treatment has resulted in the detection of a complex chromosomal abnormality, an AHR treatment provider shall not provide other AHR treatment (not being relevant AHR treatment or PGT-A) to the person unless the provider is satisfied that the person and the relevant person have received genetic counselling—

(a) subsequent to the provision of the PGT-A, and

(b) before the provision of the other AHR treatment.

(3) Where subsection (1) or (2) requires that genetic counselling be provided to two intending parents, the genetic counsellor shall offer the counselling to the parents individually, together as a couple, or both.

(4) (a) Subject to paragraph (b), an AHR treatment provider shall not be, or hold out to be, a genetic counsellor.

(b) Paragraph (a) shall not be construed to prevent the AHR treatment provider from having a genetic counsellor as a member of the provider’s staff.

(5) In this section—

“relevant person”, in relation to a person seeking relevant AHR treatment or PGT-A, means, if such person is an intending parent, the other intending parent (if any);

“relevant AHR treatment” means AHR treatment (other than PGT-A) to which this Part applies.”.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 96:

In subsection (2), line 1, to delete “PGT-A” and substitute “PGT for aneuploidy”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 2 to amendment No. 96:

In subsection (2), line 3, to delete “PGT-A” and substitute “PGT for aneuploidy”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 3 to amendment No. 96:

In subsection (5), in the definition of “relevant person”, to delete “PGT-A” and substitute “PGT for aneuploidy”.

Amendment to amendment, by leave, withdrawn.

Deputy Róisín Shortall

I move amendment No. 4 to amendment No. 96:

In subsection (5), in the definition of “relevant AHR treatment”, to delete “PGT-A” and substitute “PGT for aneuploidy”.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Section 49 agreed to.

Deputy Stephen Donnelly

I move amendment No. 97:

In page 49, line 7, after “habitually” to insert “and lawfully”.

Deputy Róisín Shortall

There are issues there on this amendment relating to residency requirements that we will need to revisit on Report Stage. I am just putting down a marker that we will need to revisit those. We had some discussion on it the last day but there are issues relating to residency that seem to be unduly onerous and I would like to revisit those when it comes to Report Stage.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 98:

In page 49, line 10, after “habitually” to insert “and lawfully”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 99:

In page 49, line 13, after “habitually” to insert “and lawfully”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 100:

In page 49, line 15, after “is” to insert “to be”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 101:

In page 49, to delete lines 16 to 18.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 102:

In page 49, to delete line 20.

Amendment agreed to.

Section 49, as amended, agreed to.

NEW SECTION

Deputy Róisín Shortall

I move amendment No. 103:

In page 49, between lines 21 and 22, to insert the following:

“Best interests of the child

50. Where, in any proceedings before any court under this Part, the court, in determining whether to make an order, shall regard the best interests of the child as the paramount consideration.”.

The amendment would ensure that the courts view the best interests of the child as the paramount consideration and we all subscribe to that. This was also one of the recommendations in the report of the special rapporteur on child protection. He 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".

The LGBT+ parenting alliance argues that subjective assessments and discretionary provisions are a corner stone of family law legislation. For example, for guardianship, custody, maintenance and so on already exist. The AHR Bill, as currently drafted, and the Children and Family Relationships Act 2015 are outliers in this regard. While there is provision for a best-interests test, this is not equivalent to judicial discretion, and for that reason I am proposing that we amend section 50 in this regard.

Deputy David Cullinane

I support Deputy Shortall's amendment. I have said several times that this Bill is a really good attempt at balancing the rights of the child, the surrogate mother and the intending parents, which is obviously really difficult to do legally. I agree that what is of paramount importance is the rights of the child in all circumstances, and the Bill generally achieves that goal. I have been lobbied on this issue as well and people have raised potential unintended consequences. One of the issues that was raised with me is how this section interacts with amendment No. 133 and the best interests of the child tests, including the parental order sections. Some concern is being expressed to us by groups and by individuals. We have had a lot of lobbies on this. I am generally satisfied that we are getting that balance right but if there has been any discussion even at departmental level on potential unintended consequences that may be resolved or that the Minister may be satisfied with, yet they were brought to our attention, were looked at and it was decided the balance was right, maybe now is the time, if that happened, to have that conversation with us. I will support the amendment but I am generally satisfied that we have that balance right.

Deputy Bernard J. Durkan

The rights of the child have to be guarded every which way. That is important, especially when we are talking about more than one jurisdiction, whether that is the homeland of the surrogate mother or any of the participating bodies. It is not for discussion in this context, but the rights of the child are not always observed at present. In different situations the rights of the child are measured in a different way and it does not always follow that those rights are guarded. I am not going to discuss it in this context, but I have seen, as I am sure everybody else has, cases where the rights of the child were blatantly ignored, depending on what information was submitted at the time by experts, or so-called experts. It is a serious issue. That is all governed by the in camera rule, which ensures nobody ever knows except those directly involved. If that were to re-emerge in this context it could create difficulties of a very serious nature for all involved. As has been said before, the aspiring parents, the surrogate mother and all the parties involved have enough trauma to go through and enough sensitivities to deal with in the ordinary course of events without another issue emerging that might impact on the rights of the child. It is hugely important, therefore, that those rights are safeguarded rigidly and observed.

Deputy Stephen Donnelly

I thank Deputy Shortall for the proposed amendment. I agree with what Deputy Durkan has said. On Deputy Cullinane's points, this was considered in great detail. I have had exactly those conversations with the LGBT+ group. It has made the various points very well and in an informed manner. We have taken them very seriously. To address Deputy Cullinane's point and the points made by other Deputies, we have looked at this to get the balance right here between having some form of judicial discretion but also having very clear safeguards in law that must be complied with. That is what I am trying to achieve here.

While on a human level I have great sympathy with amendment before us, and we all understand the point of it, it seeks to provide that the paramount concern in the court proceedings in domestic surrogacy is the best interests of the child. Why is this potentially problematic legally while on a normal level it makes an awful lot of sense? In practice it would provide the Judiciary with a very wide margin of discretion in terms of the parental order for surrogacy applications under the Bill. The concern is that in doing so, while it is obviously not the intention, it would undermine the protections of the children we are legislating for, namely, children born as a result of a surrogacy agreement, which would be brought in in another provision of the Act.

It is important to note that the best interests of the child, as I am sure we all appreciate, already form a central part of the proposed surrogacy provisions. I will give a few examples. All the requirements for the surrogate mothers, intending parents and any donor involved are underpinned by our goals. This includes those related to surrogacy being altruistic, the suitability tests for the prospective surrogate mother, the safety of the child assessment - which is critical and carried out by the AHRRA - or the need for at least one of the intending parents to be genetically related to the child. The measures we are putting in place will guarantee the protection of the child's identity rights through the mandatory inclusion of information on the national surrogacy register and, if applicable, the national donor-conceived person register. At the same time, and importantly, the best interests of the child already form and will continue to form part of the court's consideration when deciding whether to grant a parental order. However, the inclusion of such a wide judicial discretion through the term "paramount", as sought by at least one of the groups that were referenced, creates a real concern that this could unintentionally undermine the safeguards we are putting in place in the legislation. These are based on the best interests of the child and child welfare issues by providing means for intending parents to receive parentage without meeting the very carefully constructed safeguards we are putting in place.

Deputy Róisín Shortall

I find it very hard to understand the Minister's rationale. It is a well-established principle of child welfare that the best interests of the child should be paramount. The vast majority of people would subscribe to that as a primary principle. I cannot see how that could undermine any of the other protections the Minister has referenced. It is an important point and I will be pressing the amendment.

I have another point to make on this section. It is about the criminalisation of non-permitted surrogacy. Some people have argued the current provision is excessively severe. According to the LGBT+ parenting alliance, there are a number or reasons intending parents may engage in non-permitted surrogacy, including habitual residency requirements not being met, which I referenced earlier and will return to on Report Stage, the surrogate using their own egg, the surrogate having not having had a child before and circumstances like that. These are situations where people have not necessarily engaged in non-ethical surrogacy or any form of exploitation; they simply have not complied with every aspect of what is a necessarily restrictive system. I am just raising the question of whether this section could be replaced on Report Stage with one that makes it a criminal offence to engage in unethical surrogacy with evidence of harm, exploitation, undue influence, duress, etc. I ask the Minister to revisit that because it seems particularly onerous and it is not necessarily unethical if a person does not meet one of the requirements. That is the other point I wanted to make about this section. I will be pressing amendment No. 103.

Deputy Bernard J. Durkan

On the same lines, this area is very complicated by virtue of the scenarios referred to by my colleague. For example, if the surrogate mother decides to change her mind, what provisions will apply in that kind of scenario? Is the Minister satisfied the provisions are already adequate and sufficient to stand up internationally and nationally to ensure what was envisaged originally or, in other words, that this does not turn into a long-running and international battle? It has happened in that past. Does the Minister think the law is sufficiently strong to deal with that kind of situation? There are a host of other possibilities that can emerge with habitual residency of either the donor or the mother.

Is it likely that sufficient rigid provisions are in the law as proposed to deal with the situation and not allow the development of a whole new appraisal of the legislation to meet different situations that might not be provided for, or might be inadequately provided for, in this legislation?

Deputy Stephen Donnelly

To Deputy Shortall's point, obviously it is her right to press the amendment. What we are trying to do is find the right balance here because there is a concern that providing widespread judicial discretion that can simply supersede any of the requirements and the very important layers of safety we are putting in the Bill to protect the child essentially could provide an avenue for people to say they are going to ignore the Bill, that they are not going to comply with the legal requirements and that they are going to avail of surrogacy outside all or some of the protections that have been legislated for, throw themselves on the mercy of the court and say the child is here now so what is going to be done. We must get the balance right and say that while judges have discretion - they always do - it is important the safeguards in the Bill for the child have very strong standing, and essentially that is what we are trying to do. I fully respect the Deputy's right to press the amendment. I am just saying we are all trying to achieve exactly the same thing here, which is the best protection for the child. What we are proposing here, I believe, finds that balance.

On safeguards for the surrogate, it is not within these amendments, but what I might do is ask the officials to provide the Deputy with a note. We have gone through these in detail and it might come up later. It is a question I posed myself. What is the balance of rights between a surrogate mother and the intending parents? What happens where a woman, in good faith, has entered into a surrogacy, is a surrogate and, halfway through, the intending parents say they have changed their minds and she is on her own? What happens there? Similarly, what if the surrogate says she has given birth to the child, that she has changed her mind, it is her child and she is not following through on the arrangement? It is really tricky and I am not sure if there are any exact and perfectly right answers to any of these things. I think it is about trying to find a process that works as close to all of the time as it can.

Deputy Shortall raised another issue besides the rights of the child and I ask her to please remind me what that was.

Deputy Róisín Shortall

It is the legal penalties.

Deputy Stephen Donnelly

Yes, I will revert with a note. I take the Deputy's point. There needs to be a penalty, obviously, but it needs to be appropriate. I am more than happy to ask the officials to look at that, revert to the Deputy with a note as to the rationale for the current balance, and we can pick it up again on Report Stage. I might ask Ms Carter to come in on the sanctions point as well, if that is okay.

Ms Pamela Carter

Certainly we will agree to provide the Deputy with a note. There are two key points in this. One, communication is key in ensuring people are aware of what the legislation provides for. I think there will be a very robust communication plan required around this at every stage and level. I think that will address some of the concerns. Also, I suppose, the process is set up to allow for pre-approval and that, in itself, will allow individuals to engage and be familiar with what is set out in the legislation and what penalties might apply. Certainly we agree to come back to the Deputy with a more substantial note, if that is okay.

Deputy Róisín Shortall

It seems really harsh that if someone does not meet one of the many requirements, that is then automatically regarded as being unethical.

Deputy Stephen Donnelly

Yes, that is a fair point.

Deputy Bernard J. Durkan

I know that no matter how careful one is in preparing the legislation in this particular scenario, difficulties can and will arise. It could be, for example, that the surrogate mother might have no other children and might decide to change her mind on that basis. What law will prevail then? Will it be the law of the country in which she lives or Irish and international law? Obviously any law would have to comply with international law. Is the legislation as proposed sufficiently strong to deal with the situation likely to arise? I am keeping in mind the desperate situation of would-be parents. They have made every effort to have a child and eventually have arrived at surrogacy. If that goes wrong, for whatever reason, it can be hugely traumatic insofar as the intending parents are concerned. It can lead to appalling disappointment and can impact on the rights of the child because now the rights of the child are subject to the laws of another jurisdiction where there may be a different interpretation. All round there needs to be a fail-safe system imposed, insofar as one can, and I presume the Minister has already done so in the legislation, to avoid the more serious possibilities I have referred to.

Deputy Colm Burke

Can I clarify this issue in the Florida courts at the minute? I understand that the courts will always take into account the rights of the child before any other rights. They will give priority to making sure the child is looked after in the best possible way. This Bill is not in any way reducing or removing any powers from the courts in this legislation.

Deputy Stephen Donnelly

Correct, Deputy. The judges will, of course, still have discretion within the bounds of the Act.

Deputy Colm Burke

I am not talking specifically about this type of legislation, but in all cases in family law legislation the courts will, I think, take into account the rights of the child. I do not think this legislation is in any way removing that power from the courts.

Deputy Stephen Donnelly

No, it is not.

Deputy Róisín Shortall

The legislation states that it will take it into consideration but it is not required to regard it as paramount.

Deputy Colm Burke

Yes, absolutely.

Deputy Róisín Shortall

That is the distinction.

Deputy John Lahart

Chair, I mentioned an issue during the private meeting yesterday. Is it appropriate for me to mention now some of the issues concerning the compensatory piece? Have we dealt with all of them? I do not want to use the term "grandfathering". I want to make a few points on it. Is it appropriate to raise them now?

An Cathaoirleach

Not as part of this section.

Deputy John Lahart

Okay. That is grand.

An Cathaoirleach

Does the Aire want to respond?

Deputy Stephen Donnelly

No, that is it.

Amendment put and declared lost.

Section 50 agreed to.

SECTION 51

Deputy Stephen Donnelly

I move amendment No. 104:

In page 50, between lines 24 and 25, to insert the following:

“(3) Without prejudice to the generality of section 105, the specified form of a surrogacy agreement 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 62 application (if any) concerned has been made, to the surviving intending parent making such application as a single intending parent.”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 105:

In page 50, line 25, to delete “sections 72 and 73” and substitute “sections 52, 72 and 73”.

Amendment agreed to.

Section 51, as amended, agreed to.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 106:

“Safety of children - AHRRA

52. (1) The AHRRA shall not approve under section 51 a surrogacy agreement 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 the AHR treatment the subject of the surrogacy agreement attached to the application, 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 52 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 52 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 52 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 52 returns concerned, as referred to in subsection (1), it 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 52 notice”) given to each relevant person, state the reasons why the provider 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 52 return,

(b) a section 52 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, 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).”.

Deputy Róisín Shortall

I want to query an aspect of this amendment. The Bill states that people can only act as surrogates if they have previously given birth to a child. I am curious to know the basis for that requirement. The UK's Law Commission recently considered this and determined that it should not be a requirement under UK law. The commission found it constituted quite a paternalistic interference with a woman's bodily autonomy, that it inaccurately suggests that past pregnancies are a reliable predictor of future pregnancies and that it imposed the value that a family is incomplete without children. I am curious to know what the Minister's thinking is in that regard.

Deputy Stephen Donnelly

I might ask Mr. McGennis to come in on this.

Mr. Colm McGennis

The countries that have legislated for surrogacy generally have this requirement. The Law Commission has been there a long time and it has changed its views on some of these issues. It is a long way from being law in the UK and elsewhere. It is seen as a safeguard that a woman would be less likely to change her mind, as has been discussed, if she already has a child, has been through a pregnancy and knows what it entails.

Deputy Róisín Shortall

I am not sure there is any evidence for that.

Mr. Colm McGennis

It is a safeguard that is in place in other countries that have legislated for surrogacy. I do not know what evidence could be found for that or for the contrary.

Deputy Róisín Shortall

Did people change their minds?

Mr. Colm McGennis

It has been there.

Deputy Róisín Shortall

It has been talked about as received wisdom but there is no basis for it.

Mr. Colm McGennis

I do not know if there is any country that does not have the requirement.

Deputy Róisín Shortall

Well, the UK-----

Mr. Colm McGennis

It has the requirement at the moment. The Law Commission is suggesting a change

Deputy Róisín Shortall

Yes, the UK commission-----

Mr. Colm McGennis

In fairness, it has its opinion. That is a long way from being law. At the moment, it is the law in the UK. I suppose there is probably no evidence because there is no country that does not have the requirement.

Deputy Róisín Shortall

I am not convinced but we will move on. I am only making the point.

Amendment agreed to.

SECTION 52

Deputy Stephen Donnelly

I move amendment No. 107:

In page 51, line 27, to delete “under” and substitute “pursuant to”.

Amendment agreed to.

An Cathaoirleach

Amendment No. 108; amendment No. 1 to amendment No. 108; and amendments Nos. 109 and 110 are related and may discussed together, by agreement.

Deputy Stephen Donnelly

I move amendment No. 108:

In page 51, to delete lines 35 and 36 and substitute the following:

“(2) (a) A surrogacy agreement is not a permitted 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).”.

This amendment partly relates to the area of decision making that Deputy Shortall has just referred to. Amendment No. 108 seeks to add more detail to the provision in the Bill as initiated, which puts the number of occasions a woman can act as a surrogate mother at two - specifically, the maximum number of relevant pregnancies is also two - and that surrogate arrangements participated in prior to the commencement of the new surrogacy provisions should also be taken into consideration.

An Cathaoirleach

We have a number of amendments in this grouping, including one proposed by Deputy Cullinane and amendment No. 1 to amendment No. 108 proposed by Deputy Shortall.

Deputy David Cullinane

Yes, there are a number of amendments, including the Sinn Féin amendment. A number of the amendments relate to the number of surrogacy agreements and pregnancies a surrogate can participate in under the Act. As I understand it - perhaps the Minister will correct my interpretation - the original section limits a surrogate mother to two agreements. However, the amendment limits this to two pregnancies being achieved. Deputies Shortall and Gino Kenny have also proposed a number of amendments.

We all agree that limiting the number of times a person can be a surrogate is something we should do. It is an important part of the legislative framework. However, what has been put to me and what I would like to hear the Minister's view on, is why it is limited to two pregnancies, as opposed to two births. There is an obvious distinction to be made, as there could be a number of miscarriages. If it is only limited to two pregnancies that could be problematic in some circumstances. I am not sure what the logic for that is, what the thinking was in the Department or the subject of the discussions that led to the Minister's amendments and why it is not two births, as opposed to two pregnancies. Others will speak about their amendments. Perhaps the Minister will respond to that point when he gets a chance.

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 108:

In subsection (2)(a), line 3, after “a” to insert “clinical”.

It is assumed the intention of this section is to ensure a surrogate does not carry a baby to birth on more than two occasions, not merely that she does not enter an agreement on more than two occasions. However, 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. I am not sure that is what the Minister intends. He needs to revisit this and that is why I have tabled my amendment. It is essentially about inserting the word "clinical" to meet a definition.

Deputy Stephen Donnelly

I thank colleagues for their amendments and contributions.

We have discussed this at length and there is no right answer to this that I can find. I asked exactly the same questions. Is it two viable pregnancies? Is it two births? Is it after the first trimester? Why are we coming down on this? The rationale provided by the teams of officials who put this together is that it is for the protection of the surrogate and to try to avoid a situation where a woman might be pressurised into becoming a surrogate, which we are really trying to safeguard against to the greatest extent possible in this legislation. If she miscarries at whatever point in the pregnancy, there might be pressure on her to try again and again. That is what we are trying to avoid.

I am open to the word "clinical". The advice I have received is that typically at five weeks from conception, a pregnancy is a clinical pregnancy. I do not have the right answer to this. It is really about judgment and trying to make sure safeguards are in place so that women here, but more probably abroad, are not pressurised into repeated pregnancies and repeated miscarriages.

The clearest way to go is two births and there is no arguing about that. To Deputy Cullinane's point, whether it is one or three births, it is a certain number of births and that is that. We are concerned that there is a grey area before that where a woman might be exposed to coercion or pressure. We have changed it from "agreement" because agreements can come and go, but once a pregnancy is involved, the woman is fully committed. Let us say she miscarries several times after four weeks or four months, are we potentially leaving her exposed by saying that does not count and that she can try again and again? That is the rationale.

I do not know that there is a right answer. I imagine this is one of the issues that will be looked at closely in the three-year review. I am open to colleagues' views on it. I am open to ongoing discussions with officials. That is the reason we have it as we do.

Deputy David Cullinane

I tend to agree with the Minister's response. Obviously, we want to protect women against coercion. There are no obvious answers to all of these issues. We have to come down somewhere to protect women from coercion. I am still not entirely convinced, though. Two births, if I was to look at it, probably would be my preference, but obviously we have to start somewhere. As the Minister said, a review is built into this that we will conduct in a number of years. We may have to play this out and see what issues come up and whether or not this becomes an issue in some circumstances. I imagine it would be quite rare anyway. If we are being honest, I would say situations like this would be extremely rare in the first instance. On that basis, I am reasonably satisfied with the response from the Minister. I had not thought through the coercion part of it but that makes sense to me now. I thank him for the response.

Deputy Róisín Shortall

We are not talking about two births though; we are talking about two pregnancies. That is entirely different. Given the frequency of the occurrence of early miscarriage, it would be reasonable to refer to a "clinical pregnancy". A lot of miscarriages happen in the first few weeks and I am not sure why that should preclude somebody from giving birth on two subsequent occasions.

Deputy Stephen Donnelly

I am happy to take a look at that. Deputy Shortall may be right. If we are broadly agreed that by "clinical pregnancy", we are talking about five weeks - at least that is the advice I have - that is something we can look at. I am making the point that there is no right answer here. It is really around protecting the surrogate. One of the points made to me by some of the advocacy groups, for example, LGBT+ parenting alliance, was that for two men, where it can be really hard to find a surrogate and, let us say, the surrogate already has done one surrogacy and does a second surrogacy which, under this Act, would be her last with them, is there a case for one more to have a sibling, but with the same surrogate, where a close bond has been formed and they do not have the same options as others? That is something we were looking to as well to see is there something to be done there. Where we came down for now was to stick to the two to protect the surrogate. However, I had a lot of sympathy with the point they were making.

I am happy to look at "clinical" and see if that stands up legally and if that is something that we can put in. I take Deputy Shortall's point on very early miscarriage as long as we are satisfied that it does not potentially open the door to coercion of the surrogate.

Deputy Róisín Shortall

Sure. Nobody is proposing that we allow that situation to arise. It is reasonable to include the term "clinical" with "pregnancy".

Deputy Stephen Donnelly

We will take a look at the legal standing of that.

Deputy Róisín Shortall

I thank the Minister.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Gino Kenny

I move amendment No. 109:

In page 51, to delete lines 35 and 36 and substitute the following:

"(2) A woman shall not, for the purposes of being a surrogate mother under a surrogacy agreement, enter into such an agreement (which subsequently leads to a clinical pregnancy) upon more than two occasions.".

Amendment, by leave, withdrawn.

Amendment No. 110 not moved.

Section 52, as amended, agreed to.

SECTION 53

Deputy Stephen Donnelly

I move amendment No. 111:

In page 52, line 3, to delete "An" and substitute "Any".

Amendment agreed to.

An Cathaoirleach

Amendment No. 112, amendments Nos. 1 to 6, inclusive, to amendment No. 112, and amendments Nos. 113 to 116, inclusive, are related and will be discussed together.

Deputy Stephen Donnelly

I move amendment No. 112:

In page 52, to delete lines 14 to 28, and substitute the following:

“(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 males;

(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.".

Deputy Róisín Shortall

I move amendment No. 1 to amendment No. 112:

In paragraph (c)(i)(I), after "conceive" to insert "and/or bear".

Deputy Stephen Donnelly

Amendment No. 112 seeks to clarify and expand further on the circumstances in which a surrogate agreement can be approved for different groups of intending parents. Specifically, the proposed new paragraph essentially sets out how an applicant can demonstrate to the satisfaction of the AHRRA that surrogacy is effectively the only route by which they can have a child. Therefore, for instance, a female intending parent has to be able to prove that she is either unable to conceive, including the use of AHR treatments, unable to gestate a pregnancy to birth, unlikely to survive a pregnancy or giving birth, or is likely to have her health significantly adversely affected by a pregnancy or giving birth.

An Cathaoirleach

Does anyone wish to speak in this? I propose there be a comfort break for ten minutes when this section is finished. I am merely giving the members a little notice, they will be glad to hear.

Deputy Róisín Shortall

I have moved an amendment to the Minister's amendment No. 112.

Deputy David Cullinane

Amendments Nos. 112 to 116, inclusive, are included in the group.

Deputy Róisín Shortall

On amendments Nos. 112, 113 and 115, AHR professionals are concerned that the current wording only describes simple infertility. I defer to the professionals entirely on this. It excludes situations where a woman's uterus is too small, meaning she may conceive but would subsequently miscarry. That is why, in a number of paragraphs, it is proposed to qualify the wording as set out in my amendments to amendment No. 112, after "conceive" to insert "and/or bear".

An Cathaoirleach

Is it amendment No. 1 to amendment No. 112 Deputy Shortall is talking to?

Deputy Róisín Shortall

All of them.

Deputy Stephen Donnelly

There was also, after "treatment", to insert "for uterine reasons". It was the other wording Deputy Shortall was putting in.

Deputy Róisín Shortall

Yes. Three of the amendments to amendment No. 112 are quite similar. It is, in different places, after "conceive", to insert "and/or bear", and after "treatment", to insert "for uterine reasons. There is a few repeats of that where the question arises.

Deputy Stephen Donnelly

Deputy Gino Kenny has the same amendments tabled.

An Cathaoirleach

Does Deputy Kenny wish to say anything on it at present?

Deputy Gino Kenny

No.

Deputy Stephen Donnelly

The advice I am taking on this is legalistic and medical rather than from a policy perspective.

I am aware that there is some disagreement about the exact definition of the term "conceive". The advice I have is that the meaning of the term "bear" is more open to different interpretations. To bear a child can be considered to actually give birth but it can also be seen as the support or carrying of that child during a pregnancy in its entirety. "Conceive" is generally taken to mean the implantation of an embryo in the lining of the uterus. Therefore, the advice I have is that the addition of the term "and/or bear" after "conceive" is not helpful in terms of the legal clarity, especially as the second medical indication in a particular paragraph of the Bill is being unable to gestate a pregnancy to birth.

It appears that the proposed amendment to insert the words "for uterine reasons" after the medical indication relating to being unable to conceive a child is to seek to ensure that surrogacy is only contemplated when medically indicated. However, it is unclear that "uterine reasons" would represent an exhaustive list in this regard, for example, implantation failures. Also, could there be unknown reasons for a woman being considered ultimately unable to conceive?

It is crucial to emphasise that a key principle to which the authority, the AHRRA, will adhere to as a priority when deciding on applications for approval of potential surrogacy arrangements is that so-called "social surrogacy" will strictly not be permitted. Social surrogacy is basically where a female intending parent is capable of having a child either naturally or through the use of AHR treatment, including the use of donated material, without a danger to her life or serious effect on her health, but instead wishes, for whatever reasons, to employ the services of a surrogate mother. Therefore, the AHRRA will thoroughly examine every application and accompanying medical documentation to ensure that a female intending parent meets at least one of the four criteria laid out.

We do not believe it would be beneficial to delineate or to limit in primary legislation how the AHRRA intends to satisfy itself that a woman is unable to conceive a child. Similarly, we are not being overly prescriptive in terms of how it is demonstrated that a woman is unable to gestate a pregnancy or is likely to die or have significantly adversely affected health from pregnancy or giving birth. These considerations are best dealt with on a case-by-case basis using guidelines developed by the AHRRA.

I think the short version of this is that what the Deputy is seeking to put in the primary legislation can be considered by the AHRRA, and would be considered by it, but the AHRRA would be looking at that and potentially a lot of other things as well. Therefore, we will keep it to the principle in the primary legislation and then we will use the secondary legislation or the guidelines of the AHRRA to go further.

Deputy Róisín Shortall

That seems reasonable. If I get conflicting professional advice on that I will come back on Report Stage. What the Minister has outlined is reasonable.

Amendment to amendment, by leave, withdrawn.

Amendments Nos. 2 to 6, inclusive, to amendment No. 112 not moved.

Amendment agreed to.

Amendments Nos. 113 to 116, inclusive, not moved.

Deputy Stephen Donnelly

I move amendment No. 117:

In page 52, to delete lines 29 to 33 and substitute the following:

“(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 51 application concerned is made, that he or she shall—

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

(b) make a section 62 application in respect of any child born as a result of AHR treatment provided pursuant to the surrogacy agreement.”.

Amendment agreed to.

Section 53, as amended, agreed to.

An Cathaoirleach

We will take a break for ten minutes. Is that agreed? Agreed.

Sitting suspended at 11.03 a.m. and resumed at 11.15 a.m.

SECTION 54

Deputy Stephen Donnelly

I move amendment No. 118:

In page 53, line 9, to delete “or agrees to offer, make or give” and substitute “, or agrees to offer, make or give,”.

Deputy Róisín Shortall

This is agreed with the proviso that we can come back to this on Report Stage. There are particular concerns about the term "commercial surrogacy" and I do not think any of us want to see a growth in that area but there is a reality that for a lot of gay male couples, the US is the main country they have gone to and will continue to go to. There are different arrangements there in terms of the costs involved and payment. That is worth looking at again on Report Stage.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 119:

In page 53, line 11, to delete “or agrees to receive, make or give” and substitute “, or agrees to receive, make or give,”.

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 120 and 124 are related and may be discussed together.

Deputy Stephen Donnelly

I move amendment No. 120:

In page 53, line 14, after “include” to insert “fees paid for legal advice referred to in section 50(4) or 58 or”.

I beg the Chair's pardon but are we agreeing amendment No. 124 now as well?

An Cathaoirleach

No, not yet.

Deputy Stephen Donnelly

Sorry, it is grouped and will be later. I beg the Chair's pardon.

Amendment agreed to.

Section 54, as amended, agreed to.

SECTION 55

An Cathaoirleach

As Deputy Cullinane is not present, I will move on.

Amendment No. 121 not moved.

Deputy Stephen Donnelly

I move amendment No. 122:

In page 54, line 21, after “housework” to insert “or childcare”.

Deputy Róisín Shortall

Can I raise a question? I know the amendment was not moved but there are concerns that intending parents will be asked to substitute the role of the State social welfare system in respect of illness benefit under the current wording and that notwithstanding these concerns, any differential between the State supplement and the surrogate's salary should be the responsibility of the intending parents. We raised at the briefing that there are issues about exactly what will happen in those early weeks and potentially months after the child is born and the interactions with the welfare system and things such as parental leave and that sort of thing. There just is not clarity on that from my perspective.

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

Will the Minister prepare a note on how it will operate for the committee? At the time of the briefing, the Minister had not had sufficient engagement with the Department of Social Protection but perhaps some of that has been clarified now?

Deputy Stephen Donnelly

I thank the Deputy. This is essentially Deputy Cullinane's amendment and he and Deputy Shortall make a good point about the word "net" and that there are all of these moving bits and we do not want to inadvertently have people losing out by not being eligible or where there is a taxation issue, for example.

Therefore, I have asked the officials to consider the potential for including the word "net" rather than trying to find all the different variables. A reference to a net loss or avoiding a net loss would cover a wide range of things.

Deputy Róisín Shortall

Pardon the pun but that is the net point of the amendment. However, there are wider issues on which we have not got clarification. What about the payment of maternity benefits? Does the current entitlement to the maternity benefit remain irrespective of whether the intending parents have guardianship of the child from a couple of weeks? It is not necessarily a matter of inclusion in the primary legislation, but we need a note on the matter to clarify what engagement there has been with the Department of Social Protection and how the various schemes will operate in a surrogacy situation.

Deputy Stephen Donnelly

I thank the Deputy. We will certainly do that.

An Cathaoirleach

Deputy David Cullinane has returned. We have dealt with his amendment but there has been a discussion on it. Does the Minister want to recap what we have agreed on?

Deputy Stephen Donnelly

If the Cathaoirleach wants to go back to Deputy Cullinane's amendment, if that is in order, I will be happy to do so.

Deputy David Cullinane

Is it amendment No. 121?

Deputy Stephen Donnelly

We have moved on to amendment No. 122, but if it is in order to go back-----

Deputy David Cullinane

I will be brief on it. I apologise as I was a little delayed coming back. The amendment concerns domestic surrogacy. We share concerns that were raised with us to the effect that intending parents under section 55(3)(c)(ii) are being asked to substitute the role of the State social welfare system. The point being made with regard to the surrogate mother is that the social welfare element should not be borne by the intending parents alone and that the State should bear the responsibility. If there is a difference between the salary of the surrogate mother and the welfare payments, it should be met by the intending parents, but the social welfare protections for the surrogate mother should be protected. The intention of the amendment was to ensure the State payments to which a non-surrogate parent would be entitled would be available to the surrogate parent.

Deputy Stephen Donnelly

There is definitely something to this. In fact, it works in both directions. In one direction, there is social protection, and in the other there is taxation. We are going to determine whether including the word "net" on Report Stage, rather than trying to legislate for every possible combination, will cover all of it. The AHRRA would be in a position to make determinations if necessary.

Deputy David Cullinane

My amendment has not been moved but I would have withdrawn it on that basis.

Amendment agreed to.

Section 55, as amended, agreed to.

Sections 56 and 57 agreed to.

SECTION 58

Deputy Stephen Donnelly

I move amendment No. 123:

In page 55, line 12, to delete "or" and substitute "or,".

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 124:

In page 55, line 13, after "received" to insert "independent".

Amendment agreed to.

Section 58, as amended, agreed.

SECTION 59

An Cathaoirleach

Amendments Nos. 125 and 228 are related and are to be discussed together.

Deputy Stephen Donnelly

I move amendment No. 125:

In page 55, lines 18 to 22, to delete all words from and including "(1) For" in line 18 down to and including line 22.

Section 59(1) of the Bill, as initiated, stated section 46 of the Status of Children Act 1987 shall be construed to allow the removal of the presumption of legal parentage in respect of the husband of a surrogate mother. Amendment No. 125 deletes section 59(1) of the Bill, as initiated, and amendment No. 228 amends the Status of Children Act 1987 to achieve the same goal, while also extending the removal of the presumption concerning the husband of a surrogate mother in an international surrogacy agreement.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 126:

In page 55, to delete lines 26 to 34 and substitute the following:

"(a) in the case of the surrogate mother—

(i) her name,

(ii) her date and place of birth,

(iii) her nationality, and

(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, and

(iv) his or her address and contact details;

(c) in the case of the relevant donor (G) (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 or other like facility, as appropriate, at which he or she made his or her relevant donation (G), and

(v) his or her contact details; 32

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

(e) the information given to the AHR provider under subsection (3).".

Amendment agreed to.

Section 59, as amended, agreed to.

Sections 60 and 61 agreed to.

SECTION 62

Deputy Stephen Donnelly

I move amendment No. 127:

In page 57, to delete lines 25 to 27 and substitute the following:

"(b) A section 62 application shall be accompanied by—

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

(ii) particulars of the expenses referred to in section 55.".

An Cathaoirleach

Does the Minister want to discuss it?

Deputy Stephen Donnelly

No, it has already been discussed.

An Cathaoirleach

I know that. Again, I am just-----

Deputy Róisín Shortall

I thought we were going to tease out the issue of parental order applications. This arose in an earlier grouping.

Deputy Stephen Donnelly

It will be covered in amendment No. 129, which we are about to come to.

An Cathaoirleach

I am dealing with amendment No. 127, which has already been discussed with amendment No. 11. Is it agreed?

Deputy Róisín Shortall

I will be coming back to this on Report Stage. The groupings make it difficult to get in at an early stage, so I will be making points on Report Stage on the parental order application.

Amendment agreed to.

Deputy Stephen Donnelly

I move No. 128:

In page 57, line 28, after "may" to insert "only".

Amendment agreed to.

An Cathaoirleach

Amendments Nos. 129, 131 and 134 are related and may be discussed together, by agreement.

Deputy Stephen Donnelly

I move amendment No. 129:

In page 57, between lines 29 and 30, to insert the following:

"(3) The following shall be parties to a section 62 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 provided pursuant to the permitted surrogacy.".

The amendment confirms that the parties to a parental order application will be the surrogate mother, intending parents and the child concerned. Amendment No. 131 states the AHRRA and the Attorney General will be served with a copy of any such application, and amendment No. 134 provides for the court to be able to add the AHRRA, the Attorney General or any other person or parties to parental order application proceedings. It also allows for the AHRRA or Attorney General to request to be added to any such proceedings.

Deputy David Cullinane

I have a question on this. The parental order came up in earlier discussions and in the briefings we had with the Minister's officials. The Minister mentioned the courts. There is concern over the time between birth and the making of a parental order. There was some discussion about whether the court system would be able to hear the cases in a timely fashion. Was consideration given to what would constitute a reasonable timeframe within which a court hearing must be held? Has there been engagement with the Courts Service through the Department of Justice on its capacity and so on? We do not want parents waiting far too long for a court case to come up, leaving them in limbo. The parental order is very important. I am satisfied with all the protections that have been put in place. A very clear direction is being given to the courts and judges on the requirements on all parties. This is really important. I commended the officials for that. What has been achieved is very difficult to do in legislation.

However, the issue raised was that the cases be held in a timely manner to allow for those parental orders to be made as quickly as possible. Since our previous discussions, has there been engagement with the Courts Service or the Department of Justice or feedback on any of this? Is it still ongoing?

Deputy Stephen Donnelly

I thank Deputy Cullinane. It is a question I would refer to one of the officials. It is only officials from my Department who are contributing. If it is okay, I will ask that the officials get the committee a note on where this is at.

Deputy David Cullinane

That is fine.

Deputy Róisín Shortall

This group of amendments relates to a fundamental issue, namely, the question of parentage. When we had the briefing with the officials a statement was made that the birth mother is regarded as the legal mother. This goes to the heart of what happens in the post-birth period and possibly for some months afterwards. On the day of the briefing, the statement was not fully challenged. It would seem that it has become the received wisdom based on a 2014 ruling of the Supreme Court. I do not know whether this is the view of the officials or the view of the Attorney General. It is important that we have a legal note on this.

It has been brought to my attention that when we look at the detail of the judgments of each of the seven judges of the Supreme Court, under no circumstances can they be interpreted as confirming what is called in legal terms the mater maxim. It is quite an outdated concept that the birth mother is the legal mother. It is a maxim that was generally accepted in a period going back to the 1800s when the idea of surrogacy had not been contemplated. Reading the detail of the judgments by the seven judges, Mrs. Justice Denham, for example, said the mater maxim reflected a different social approach to parenthood and a time prior to medical and scientific advances. She also said there was no authority to suggest the maxim is either an irrebuttable presumption or that it was enshrined in Irish common law as argued by the State.

This concept of what is called the mater maxim, that the birth mother is the legal mother, was disputed by a majority of Supreme Court justices in that ruling. There are some very strong statements and I will quote one other from Mr. Justice O'Donnell. He said he wished to make it as clear as is possible that this decision is limited to the question of immediate registration of birth and should not be taken as deciding anything more. The Supreme Court only adjudicated on the birth mother being regarded as having a legal role in respect of the registration of birth and not parentage. I am curious as to how this statement that the birth mother is the legal mother became used as a statement of fact. What legal advice has the Minister received directly from the Attorney General on the status of the surrogate mother as birth mother? I know it is a very technical area but it does go to the heart of the whole question of parentage.

Deputy Stephen Donnelly

Yes, absolutely. I will ask Mr. McGennis to come in on this.

Mr. Colm McGennis

It is a family law issue.

Deputy Róisín Shortall

Sure.

Mr. Colm McGennis

We have taken our cue on this from the Attorney General. I suppose it is registration, to a large extent, that is involved here, notwithstanding that there is the period after this before a parental order can be made. I take Deputy Shortall's point. Perhaps the best thing we could do is to go back to the Attorney General and get Deputy Shortall a more comprehensive note on this particular aspect. It is tied in with other things about the non-enforceability of a surrogacy agreement. We are not proposing a model of pre-birth transfer of parentage for various reasons. It is mixed in with this. The best thing to do would be to get proper clarification from the Attorney General.

Deputy Róisín Shortall

It is a fundamental question about the status of the child from the point of birth to the granting of a parental order. That could be quite an extended period. Who is the legal guardian in those circumstances? Who has the legal right to make decisions about the child?

Deputy Stephen Donnelly

I agree entirely. This goes to the heart of the legislation because the parental order removes a constitutional parental right. It is very serious legislation. The point Deputy Shortall is making goes to the heart of this. The answer to the question in the Bill is very clear; it is that the birth mother is the legal parent until the parental order. This is the position under the Bill.

Deputy Róisín Shortall

Where does that assertion come from? The Minister is saying the constitutional parental right is with the birth mother.

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

What is the basis for that claim?

Deputy Stephen Donnelly

We can get a very detailed legal note. The advice we have is that that is the situation under law.

Deputy Róisín Shortall

Where does that entitlement come from?

Deputy Stephen Donnelly

We will get Deputy Shortall a detailed note on it. From day one, that has been the legal advice we have had. We can get Deputy Shortall a detailed note.

Deputy Róisín Shortall

I am challenging it because it is the statement the officials have been making.

Deputy Stephen Donnelly

Yes.

Deputy Róisín Shortall

It is the basis of the provisions in this section on parentage. I am not convinced. I do not know where the principle or assertion comes from.

Deputy Stephen Donnelly

We will get a detailed note on it and share it with the committee.

Deputy Róisín Shortall

The only judicial statements in this regard are far from what has been alleged here. They set down an opposite interpretation of constitutional-----

Deputy David Cullinane

I would like clarification on something. From my memory of the briefing we had with the officials, we had some discussion on this and it was exactly as Deputy Shortall pointed out with regard to the status of the child from the point of birth to the granting of a parental order. My understanding of the briefing we got was that both the intending parents and the mother would be guardians until the point when there would be an adjudication by the court, which would remove the right of the surrogate and the parental order would then transfer all of those rights to the intending parents. In the intervening period all three would be guardians. That was my understanding of what was said. Is that the position?

Deputy Stephen Donnelly

I will go back to Mr. McGennis.

Mr. Colm McGennis

That is correct. The surrogate would give this undertaking to allow for the intending parents to be-----

Deputy Róisín Shortall

What if she does not?

Mr. Colm McGennis

We would come into issues with many things if the surrogate changed her mind and did not agree with transferring the parentage.

Deputy Bernard J. Durkan

This is what I was referring to earlier in another context. It is very difficult to get one's head around it. Unless there was some understanding that the surrogate mother automatically conceded her rights at the initial stages, it may come into it at some stage. I believe that otherwise she has the right to change her mind. Deputy Shortall mentioned it. If she changes her mind, it could cause horrific issues for the intending parents. Their trauma would be about to begin. Is there any way the Minister could advance the cause of the parenthood before it comes to the making of the order? Is there any way in the initial stages that it could be understood that this would be the outcome and that it could be put into the law on surrogacy?

Otherwise it is going to be contested. Depending on which jurisdiction you are in and who the participants are, there could be serious difficulties. I wonder about that.

Deputy David Cullinane

I thank the Minister for the confirmation of my understanding of the situation. Perhaps I could hear from one of the officials what the process is so that we are clear. An agreement has to be reached or entered into by the intending parents and the surrogate at the earliest stage, which raises the question of what legal standing the agreement has. Built into the agreement, as the official said, is an acceptance from the surrogate mother that the intending parents would also be guardians in that intervening period. What status does that have, can it be challenged and how? Obviously, the parental order is a matter for the court and that is a separate matter that will come at whatever point it comes but it is important for us to get clarification on the issue of the intervening time period. I understand there is a process and an agreement. The agreement is entered into by all parties who agree that all three individuals have guardianship until the point of a parental order. What is the status of that, can it be challenged, how can it be challenged, in what circumstances can it be challenged and what would the rights of the surrogate be to challenge that, notwithstanding the agreement entered into? That is an important issue to tease out. Perhaps the Minister could provide a bit more clarity on exactly how that process works. If it could be given now, it would be helpful.

Deputy Bernard J. Durkan

When would it be advisable for a parental order to be made? How old should the child be? If bonding takes place with the surrogate mother, which it can and will, depending on the jurisdiction in which the surrogate mother resides, it could have obvious implications, as it has in the past.

Deputy Stephen Donnelly

The transfer should be made as soon as possible, within a maximum of 28 days, which goes to the questions raised around the capacity of the courts to be available to do that. In terms of the process, I will ask Mr. McGennis to walk the committee through the process envisioned in the Bill.

Mr. Colm McGennis

There are a number of undertakings that intending parents and surrogates have to give as part of the application process in the first place. One of those is that the surrogate will, as soon as possible after the birth, agree to the guardianship for the two intending parents. Those intending parents, on the other hand, have to give undertakings about caring for the child after birth and we have provision that the AHRRA can seek instruction from the courts if it believes those undertakings have not been adhered to.

A lot of it comes down to the unenforceability of these surrogacy agreements in line with the Verona Principles, which are also strong on the surrogate mother having a cooling-off period, for want of a better term, after birth and before the parental order would be granted. There is a right for the surrogate mother to change her mind.

Deputy Bernard J. Durkan

Can that happen at that stage?

Mr. Colm McGennis

It can happen at any stage. Perhaps the surrogate mother will not agree to the guardianship immediately at birth. Perhaps she will not consent to the grant of the parental order. We are trying to include safeguards to minimise the risk of that happening but it probably, if not inevitably, will happen. We hope it will happen on rare occasions that the surrogate and the intending parents want the child or that none of them wants the child.

Deputy David Cullinane

If this Bill passes, what will be the legal rights of that surrogate mother in those circumstances? That is the question.

Deputy Róisín Shortall

A whole lot of questions need to be answered in respect of the unknowns during that period. We are talking about things happening ideally as soon as possible and that kind of thing. The three people concerned, the birth mother and the intending parents, have joint guardianship during that interregnum, or whatever you would like to call that period, subject to the agreement of the surrogate mother. A lot of that detail remains to be worked out, not least the question I asked at the briefing about how we can have the timescales the Minister is proposing on the basis of having easy access to the courts, which is not by any means guaranteed. Other Departments are implicated in all of this. What discussions has the Minister had since our briefing with the Courts Service in terms of access within a reasonable timescale for cases such as this where time is of the essence? That is one point, and I would not mind seeing a note on the issue. My overriding point is that all of this is, according to the Minister, based on an assumption in law that the birth mother is regarded as the legal mother. I cannot see that in the law. What is that assumption based on? If there is evidence that is the case, a lot of other things flow from it. However, I am asking if that is the case or not. I cannot see where that is set down in law.

Deputy Stephen Donnelly

I might reverse that slightly, if I may. Our entire society is premised on the fact that the birth mother is the mother of the child to whom she gives birth. What is causing the Deputy to question it in this case? Is it because there may be no genetic link to the mother?

Deputy Róisín Shortall

That is exactly the reason. There is no genetic link. The surrogate carried the baby, but does that confer on her a legal right? From where does that assumption come?

Deputy Stephen Donnelly

The very clear legal advice we have is that the constitutional presumption of being the mother of the child to which a woman gives birth, which we all accept, because our entire society is built-----

Deputy Róisín Shortall

No, it is not. It was.

Deputy Stephen Donnelly

Mothers who give birth to children are recognised under law as the mothers of those children. That is-----

Deputy Róisín Shortall

Where has that been established?

Deputy Stephen Donnelly

We are not contesting the broad point that mothers are the mothers of the children to whom they give birth, are we?

Deputy Róisín Shortall

I am.

Deputy Stephen Donnelly

Okay.

Deputy Róisín Shortall

I am contesting that point in a surrogacy situation where there is no genetic link-----

Deputy Stephen Donnelly

I accept that.

Deputy Róisín Shortall

-----between the baby and the birth mother.

Deputy Stephen Donnelly

I accept that. I am talking about the broad point and putting aside genetic links for a moment. We all accept the legal underpinning-----

Deputy Róisín Shortall

That is an assumption.

Deputy Stephen Donnelly

-----of the concept that mothers are the mothers of the children to whom they give birth. The Deputy is asking if that legal relationship exists where there is not a genetic relationship and the very clear legal advice we have is that it does. We will get the Deputy a note from the Attorney General providing chapter and verse, and we can ask for a reference to the Supreme Court judgment to which the Deputy has referred. The clear position between the three Departments that have looked at the issue is that the core principle, regardless of genetic testing, applies here. The same question would exist, for example, in terms of donor-assisted human reproduction. A mother who gives birth to a child is the intending parent in that case. Is she the mother of that child even though she may not have a genetic link to him or her? She absolutely is. That is the case when she is the intending parent under donor-assisted human reproduction and when she is not the intending parent under surrogacy. We will get the Deputy a legal position in that regard.

Deputy Róisín Shortall

With all due respect to the Minister, it is easy to say, "She absolutely is." What is that based on? That is my point. That has been adjudicated on in recent times in the Supreme Court judgment when the court was asked about the registration of the birth. That was the only basis on which a legal right was regarded as existing. That is not the case in respect of the legal parentage of that child.

On what is the Minister's assumption, which is inherent in this legislation, based? I cannot see where there is constitutional provision or law set down by the courts in this regard. Before we have our next session, it is important that we see the legal advice from the Attorney General.

Deputy Stephen Donnelly

Just to be clear, and as the Deputy is aware, we cannot provide the actual advice from the Attorney General, but we will get her detailed legal advice.

Deputy Róisín Shortall

On which the assumption is based.

Deputy Stephen Donnelly

Yes.

Deputy David Cullinane

We need a wider note. That would be helpful. The Department will have had many discussions and internal deliberations on these issues and I imagine that all sorts of scenario were discussed. I hope that challenges will be rare, but it is always the rare cases that become problems. It would prepare us for Report Stage if we had a much more detailed note on the time between birth and a parental order, some of the issues that might arise if a surrogate mother decides for whatever reason that she is not happy with the agreement, what the options are, what her rights are, what the rights of the intending parents are, what the status of the child is, etc. In many ways, these matters go right to the heart of the Bill. Obviously, we cannot get the direct legal advice, but a variation that provided us with an understanding of it would be important. Many issues can arise in the intervening period. They will only happen rarely, but when they do, that is when they will become a problem. We need to think it all through or at least have as much of the information that the Department has as possible. A note on this would be important for us ahead of Report Stage. Given that we have discussed this matter, we will have a right to submit amendments on Report Stage, if necessary, given that they would arise from Committee Stage. A note may or may not allay some of our concerns, but it would be great if it was supplied to us.

Deputy Stephen Donnelly

That is no problem.

An Cathaoirleach

If that is okay, we will move on.

Deputy Róisín Shortall

May I address that first? We need the note well in advance of the next session on this Bill.

Deputy Stephen Donnelly

Of course.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 130:

In page 58, line 7, after “pregnancy” to insert “the subject of the surrogacy agreement concerned”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 131:

In page 58, to delete lines 8 to 22 and substitute the following:

“(7) Without prejudice to the generality of section 63(4) and (5), the AHRRA and the Attorney General shall be served with a copy of the section 62 application.”.

Amendment agreed to.

Section 62, as amended, agreed to.

SECTION 63

Deputy Stephen Donnelly

I move amendment No. 132:

In page 58, line 35, to delete “section 62(1)(b)” and substitute “section 62(1)(b)(i)”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 133:

In page 59, between lines 4 and 5, to insert the following:

“(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 62 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 62 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.”.

Deputy David Cullinane

This is an important amendment because it sets out how the courts can determine the best interests of the child. We had a lengthy discussion on this and I am satisfied that the criteria outlined in the Bill and the amendment are the appropriate approach in terms of a direction to the courts, but Mr. Daniel Keating in my office – he is working through all of these amendments and how they relate to one another – asked me to raise amendment No. 246, which is in a separate grouping but may be required to complement this amendment. I am not sure if it is, but I have been asked to get clarity on the matter. If the Minister does not have the information now-----

Deputy Stephen Donnelly

May I revert to the Deputy?

Deputy David Cullinane

Yes.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 134:

In page 59, between lines 5 and 6, to insert the following:

“(4) At any time on or after the court receives a section 62 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.

(5) Where, at any time on or after the court receives a section 62 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.

(6) The court may direct that notice of a section 62 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.

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

(a) the Attorney General, or

(b) the AHRRA.”.

Amendment agreed to.

Section 63, as amended, agreed to.

SECTION 64

An Cathaoirleach

Amendments Nos. 135 to 138, inclusive, are related and will be discussed together.

Deputy Stephen Donnelly

I move amendment No. 135:

In page 59, to delete lines 10 and 11 and substitute the following:

“(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,”.

These amendments, in combination, seek to confirm that, where a parental order is granted, any person who is not named on the order is not a parent of the relevant child while, in respect of a person named on the order who had previously been granted a declaration of parentage under section 35 of the Status of Children Act 1987, that declaration is unaffected.

An Cathaoirleach

Does anyone wish to contribute?

Deputy Róisín Shortall

We will wait for a legal note on this.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 136:

In page 59, line 14, to delete “and”.

Deputy Róisín Shortall

Would the Chair mind holding on for a second? Are we still on section 63?

An Cathaoirleach

No. We are on section 64.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 137:

In page 59, line 16, to delete “child.” and substitute “child, and”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 138:

In page 59, between lines 16 and 17, to insert the following:

“(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.”.

Amendment agreed to.

Section 64, as amended, agreed to.

SECTION 65

Deputy Stephen Donnelly

I move amendment No. 139:

In page 59, line 33, to delete “commencment” and substitute “commencement”

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 140:

In page 60, lines 16 and 17, to delete “update or correct the information, as the case may be, without delay,” and substitute “, without delay, update or correct the information, as the case may be,”

Amendment agreed to.

Section 65, as amended, agreed to.

Sections 66 and 67 agreed to.

SECTION 68

An Cathaoirleach

Amendments 141 and 143 are related and will be discussed together.

Deputy Stephen Donnelly

I move amendment No. 141:

In page 62, to delete lines 5 to 7.

These amendments, in combination, remove the requirement for surrogate mothers, donors or intending parents to be notified of an application seeking identifying information about them that has been submitted by a relevant person, that is, a child born as a result of a domestic surrogacy agreement. This requirement is being removed because there is no provision for a surrogate mother, donor or intending parent to object to or prevent the release of such identifying information.

Deputy Róisín Shortall

Are we discussing the entire group?

An Cathaoirleach

Yes. We are on amendment No. 141 now. We will vote on the other amendment later, but we are discussing amendments Nos. 141 and 143 now.

Deputy Róisín Shortall

What is the debate on? Does it not go down to the next line?

An Cathaoirleach

We are discussing both amendments, but for the sake of formality, we will vote on amendment No. 143 and then move on to section 69.

Deputy Róisín Shortall

On a point of order, I think there is a problem with the presentation of these groupings. It is hard to figure out where they start and end. My assumption is that each group ends with a semi-colon. I am sorry this sounds very pedantic, but all the text of amendments Nos. 141 and 143 seems to be included, and then the next three lines.

An Cathaoirleach

These are two separate sections being looked at.

Deputy Róisín Shortall

The presentation of this is very confusing. Does the Cathaoirleach know what I mean? It would seem that the end of a grouping is marked by a semi-colon. Is that the Minister's understanding as well?

Deputy Stephen Donnelly

I probably have a different note from the one the Deputy has. In mine, it is specifically just lines 5 and 7, and then lines 20 and 21 on page 62 of the Bill.

Deputy Róisín Shortall

I am sorry. I am talking about the groupings.

Deputy Stephen Donnelly

I just have amendments Nos. 141 and 143.

Deputy Róisín Shortall

It then goes on to the next parts of the text. It is very hard to engage in this debate when there is this confusion. I am not blaming the Minister. I am just saying the Bills Office should be clear about this material. It took me a while to figure out that the end of a grouping is marked by a semi-colon. This is not good enough when there is such a body of work to be dealt with. The Minister is taking it that it is just amendments Nos. 141 and 143 in a grouping.

Deputy Stephen Donnelly

Right now, yes.

Deputy Róisín Shortall

That is not what is indicated here.

Deputy Bernard J. Durkan

We are at a complicated Stage of the legislation. Would it be possible for us to bring something up on Report Stage even if we do not flag it now, or do we need to flag things now?

Deputy Stephen Donnelly

I can give my view but I think this is a question for the Chair rather than for me. My understanding-----

Deputy Róisín Shortall

With all due respect, it is one for the Ceann Comhairle. It would be ruled out of order.

An Cathaoirleach

I think we need to flag it now.

Deputy Stephen Donnelly

That is my understanding.

Deputy Bernard J. Durkan

Could we include a proviso to the effect that, due to the complicated nature of the legislation, if something arises between now and Report Stage, we can put-----

An Cathaoirleach

I suppose we could if we were to come up with a form of words that will cover such a situation.

Deputy Bernard J. Durkan

That is what I am trying to do.

Deputy Stephen Donnelly

I suggest there is not much that has not been discussed. We are going through this Bill in a lot of detail, so-----

Deputy Bernard J. Durkan

The Minister better believe it. It is an area that has been discussed elsewhere in great detail in the past and will be again in future.

Deputy Stephen Donnelly

Yes.

An Cathaoirleach

Would it be helpful if we suspended the meeting for a few minutes to discuss this matter? Is the-----

Deputy Stephen Donnelly

The committee will certainly not hear me object to anything members may wish to discuss on Report Stage. The more discussion we have on all this, the better.

Deputy Bernard J. Durkan

Will the Cathaoirleach be flexible, in his wisdom?

An Cathaoirleach

I would like to be flexible in my wisdom.

Deputy Róisín Shortall

I am sorry, but it will not be a matter for the Chair because he will not be in control when we are dealing with this legislation on Report Stage.

Deputy Bernard J. Durkan

I know.

An Cathaoirleach

No.

Deputy Stephen Donnelly

There will also be the safeguard that we will have at least one more session to discuss this matter. Hopefully, it will be just one more. My understanding is that once something is raised, the members are covered.

Deputy Bernard J. Durkan

All right.

An Cathaoirleach

If members go on to raise things later, if they have concerns that we have missed something, I am sure the Aire will be flexible. He has said he will be flexible. Does that cover Deputy Shortall's concerns?

Deputy Róisín Shortall

I think it does to a certain extent. What is the Chair's understanding of this grouping? Are we talking about amendments Nos. 141 and 143 as a group or are the subsequent lines included too? This is based on the email from-----

An Cathaoirleach

Let us break for five minutes and discuss this in private.

Sitting suspended at 12.05 p.m. and resumed at 12.08 p.m.

An Cathaoirleach

Some clarity has been brought to the situation. Amendments Nos. 141 and 143 are related and are being discussed together. I think I have asked the Minister to move amendment No. 141 already.

Deputy Stephen Donnelly

I moved amendment No. 141 and spoke to amendment Nos. 141 and 143.

Deputy Róisín Shortall

When did the Minister speak to those amendments?

Deputy Stephen Donnelly

Just now. I will do so again if the committee wishes.

Deputy Róisín Shortall

I would not mind hearing the Minister's comments again, if he does not mind.

Deputy Stephen Donnelly

No problem at all.

An Cathaoirleach

It was so good the first time.

Deputy Stephen Donnelly

Amendments No. 141 and 143, in combination, remove the requirement for surrogate mothers, donors or intending parents to be notified of an application seeking identifying information about them which has been submitted by a relevant person, a child born as a result of domestic surrogacy. This requirement is being removed because there is no provision for the surrogate mother, the donor or the intending parent to object to or prevent the release of such identifying information. In other words, this is a further safeguard in terms of the rights of identity of the child.

Deputy Bernard J. Durkan

With the modern world and science expanding at the rate it is, I hesitate to think about what such an application might contain in relation to information that one or other party might take offence at. This is the world we live in.

Deputy Stephen Donnelly

The point is that we do not want to have a situation where the child, in exercising their right to identity, could somehow be prohibited or that the application could be interfered with through an application for an injunction or whatever it might be.

It is exactly that. We are protecting the right of the child to seek his or her identity.

Deputy Bernard J. Durkan

I hope it works.

Amendment agreed to.

Section 68, as amended, agreed to.

SECTION 69

Deputy Stephen Donnelly

I move amendment No. 142:

In page 62, lines 15 and 16, to delete “section 69 application” and substitute “ “section 69 application” ”.

Amendment agreed to.

Deputy Stephen Donnelly

I move amendment No. 143:

In page 62, to delete lines 20 and 21.

Amendment agreed to.

Section 69, as amended, agreed to.

Sections 70 to 73, inclusive, agreed to.

NEW SECTION

Deputy Stephen Donnelly

I move amendment No. 144:

In page 64, between lines 23 and 24, to insert the following:

“Provisions supplementary to sections 72 and 73

74. Sections 72 and 73 shall, with all necessary modifications, apply to—

(a) a specified form, not being an application 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 to the AHRRA under this Part.”.

Amendment agreed to.

Section 74 agreed to.

An Cathaoirleach

I suggest we break at this point.

Deputy Stephen Donnelly

It is up to the committee. The next one is moving onto essentially a new Bill on international surrogacy. It will take some time.

An Cathaoirleach

It is a natural time to break. That completes the Select Committee on Health's consideration of the Health (Assisted Human Reproduction) Bill 2022 for today. Further consideration will be required to complete it and the committee will schedule a meeting for this purpose as soon as possible. I thank the Minister for Health and his officials for attending.

Progress reported; Committee to sit again.

The select committee adjourned at 12.13 p.m. sine die.