Catherine Connolly (Galway West, Independent)
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Amendments Nos. 1, 8, 24, 28, 39, 42, 44, 48, 59, 62, 67, 68, 70, 83, 87 and 88 are related and may be discussed together by agreement.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 1:

In page 14, line 9, to delete “228,” and substitute “228”.

This group of 16 amendments is purely technical in nature and its acceptance would not have any policy implication for the Bill. The amendments variously seek to refine terminology, correct minor typographical and punctuation errors and update referencing.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 2, 36, 55, 56; are related and may be discussed together by agreement.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 2:

In page 17, between lines 19 and 20, to insert the following:

“ “medical specialist” means a registered medical practitioner whose name is entered

in the Specialist Division of the register of medical practitioners maintained by the

Medical Council under section 43(2)(b) of the Act of 2007;”.

This group of four amendments relates to the introduction of a new definition of "medical specialist" alongside the definition of "registered medical practitioner" and "relevant specialist" already in the Bill. The addition of a new definition is based on expert advice from the HSE to ensure the views of an appropriate specialist, rather than those of a registered medical practitioner are provided for in respect of issues such as the likely impact on a child's fertility caused by medical treatment she or he is undergoing or the assessment of physical suitability of a potential surrogate mother. It was discussed and asked for on Committee Stage by committee members and I am happy to include it on Report Stage.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 3, 33, 34, 43, 53, 54, 63, 73 and 78 are related and may be discussed together.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 3:

In page 22, to delete lines 20 and 21.

This group of nine amendments relates to issues arising from the death of an intending parent in a surrogacy agreement. Amendment No. 3 deletes a cross-reference to provisions later in the Bill in section 53(3) which relate to a surviving intending parent in a surrogacy agreement applying for a parental order as a single intending parent when the other intending parent dies after the relevant embryo transfer takes place. Amendment No. 33 replaces section 53(3) with a requirement in a specified form of a domestic surrogacy agreement that in the case of two intending parents, each needs to indicate that he or she understands that if one of them dies before the relevant embryo transfer takes place, any approval granted by the regulatory authority to that agreement will be immediately revoked. This is because the application would have been made and the approval granted on the basis that there were two intending parents. Amendment No. 34 basically confirms this position.

Amendments Nos. 53 and 54 mirror amendments Nos. 33 and 34 in respect of international surrogacy. However, there is a possibility that the surviving intending parent could at least potentially reapply for approval from the regulatory authority as a single intending parent when their partner dies before the embryo transfer has taken place with the proposed use of the same embryo as long as the surviving intending parent has a genetic link.

David Cullinane (Waterford, Sinn Fein)
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If I am reading the amendments correctly, they provide that where two intending parents enter into an arrangement but one dies before the embryo transfer takes place, the previously given consent is considered revoked. I have been asked to ask the Minister whether any provision has been made, allowed or considered for intending parents to indicate ongoing consent in the event of a death so that the remaining parent may continue with the surrogacy. Has consideration been given to a situation where one or both parties could consent that in the event of the death of one of the individuals the agreement could still proceed.

Stephen Donnelly (Wicklow, Fianna Fail)
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That is right, if the embryo transfer has taken place. If the embryo transfer has not taken place they have to reapply essentially.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 4, 7, 50, 69, 71, 74 and 79 are related and may be discussed together.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 4:

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

“(7) Nothing in this Act shall be construed to prejudice the generality of the Assisted

Decision-Making (Capacity) Act 2015.”.

Amendment No. 4 introduces a catch-all provision to confirm that nothing in the Bill should be construed to prejudice the generality of the Assisted Decision-Making (Capacity) Act 2015. This amendment ensures coherence and consistency across all the relevant provisions in this Bill which refer to capacity-related matters and allows the deletion of the terms "subject to the provisions of" or " the generality of" the 2015 Act later in the Bill. These deletions are also the purpose of the other six amendments in this group, which are amendments No. 7, 50, 69, 71, 74 and 79.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 5:

In page 25, to delete lines 15 to 17 and substitute the following:

“(a) the current state of medical evidence as to—

(i) the increase in the number, or the severity, or both, of risks (whether bodily

or otherwise), and

(ii) the likelihood of a successful outcome,

associated with providing the relevant treatment to persons by reference to

increases in age;”.

The Bill as amended by the Select Committee on Health provides in section 12 for the Minister to specify the upper age limits for being provided with assisted human reproduction, AHR, treatment. Amendment No. 5 adds criteria which the Minister shall have regard to when making such regulations. The new criteria relate to the likelihood of the successful outcome of AHR treatment in the context of how it increases with age.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 6, 35 and 49 are related and may be discussed together by agreement.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 6:

In page 28, line 20, after “satisfied” to insert “, based on the information available to the

provider,”.

Section 16(2) of the Bill states that AHR treatment should not be provided to a person unless the clinic is satisfied that the person and their partner do not represent a potential significant risk of harm or neglect to a child. Amendments put forward on Committee Stage by Deputies Cullinane and Shortall would mean that a clinic would have to refuse to provide AHR treatment if it became aware of such a significant risk. We had a good debate on this. Those amendments would in effect overly lower the bar with regard to the onus being placed on the providers, which was discussed. It should be noted that the wording in the Bill as initiated was already somewhat less onerous than in the 2017 general scheme. Head 7(1) of the general scheme stipulated that "a person shall not be provided with AHR treatment unless account has been taken of the welfare of any child who may be born as a result of such treatment". In other countries, the bar to be reached in this area is often higher. Amendment No. 6 will make clear that individual clinics can only satisfy themselves that there is no potential significant risk based on the information available to them. Essentially, it is not up to them to do investigative work on each of their clients. This reflects that the information available to them will be largely based on the assessment documentation the regulatory authority will develop as well as anything that comes up as part of normal counselling or consultation. The slightly amended wording which requires the fertility clinic is satisfied strikes the right balance and speaks to the legitimate concerns raised by Deputies Cullinane and Shortall and that we discussed on Committee Stage.

David Cullinane (Waterford, Sinn Fein)
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When we discussed this on Committee Stage, and there was lengthy discussion of this with the Minister's officials at briefings on this matter too, the concern that we had was that it could be perceived that providers were being asked to police access to services, so I welcome the fact that the wording here essentially says that the regulator must be satisfied on the basis of information available to them. I think that is sensible and logical and it answers for me the concerns I had.

In any of these issues, where we had concerns, because this is a unique situation that we are developing here in Ireland and there is no template that we can take which makes it more difficult, the review after three years will be really important. If things need to be re-examined and changed then we can do that. On this issue, I think the wording the Minister has agreed to satisfies the concerns that I had and I thank the Minister for that. We did have very lengthy discussion on it but I am happy to support what has been inserted by this amendment. It does go a long way to alleviate concerns I had in this area.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 7:

In page 32, line 13, to delete “subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015,”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 8:

In page 37, to delete lines 22 and 23.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 9 and 10 are related and may be discussed together

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 9:

In page 42, line 2, to delete “Subject to subsection (2), an” and substitute “An”.

Amendments Nos. 9 and 10 will result in the deletion of subsection (2) of section 34. This is being deleted on the basis of expert advice from the HSE that there are no genetic family members in respect of whom the provision of AHR treatment should be refused on purely genetic relationship grounds other than those genetic family members listed in subsection (3). Therefore that list in subsection (3) should be viewed now as an exhaustive list. Therefore it makes it more inclusive.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 10:

In page 42, to delete lines 7 to 14.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 11, 40, 60 and 85 are related and may be discussed together

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 11:

In page 43, line 11, after “expenses” to insert “, and any net loss of income,”.

On foot of amendments submitted by Deputies Shortall, Cullinane and Kenny on Committee Stage, I am introducing this amendment to speak to the issues they raised. Essentially this will bring in an allowance for net loss of income to be included as part of the permitted reasonable expenses incurred by a donor. This provision, which is brought in through amendment No. 11 to allow donors to be paid for a net loss of income is particularly required in respect of, for instance, egg donors who are more likely to take time off and need to take time off from their jobs to complete the donation process.

Amendment No. 85 makes a similar change to the Children and Family Relationships Act. The other two amendments are on foot of Committee Stage amendments from Deputy Cullinane. Again, the word “net” is being added before loss of income in the context of reasonable expenses incurred by a surrogate mother. This will allow for aspects such as social protection payments or income tax liabilities to be taken into account when seeking to calculate a surrogate mother’s potential loss of income. Again, it makes it a stronger scheme and hopefully reflects the amendments and the discussion that we had on Committee Stage.

David Cullinane (Waterford, Sinn Fein)
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Again, I raised concerns on Committee Stage, and on Second Stage, that the net loss of income was not covered under reasonable expenses so the fact that the Minister has agreed to that and that the amendments reflect that and use the terminology that was recommended in the various amendments by Members of the Opposition is very helpful. I thank the Minister for that and I will be supporting the amendments.

I do want to say, however, that when I am looking at lots of the amendments, and we had lengthy conversations on many of these issues, it is helpful that the amendments are reflecting much of the discussions that we had. People who are waiting for this Bill to pass will be looking for it to pass as quickly as possible. It shows when we are making these types of changes that we are getting it right, or at least we are all trying our best to get it right. I commend the Minister on his approach and I am very happy with the amendment.

Róisín Shortall (Dublin North West, Social Democrats)
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The Minister has taken a reasonable approach on this. I endorse the point made by Deputy Cullinane. Speed is fine if people are in a hurry to get something but speed in addressing legislation, and especially legislation as long and very complex as this Bill, very often results in our having to revisit the issue unless adequate time is given for consideration of the provisions. Therefore, I think it was right that we took the time that we did on Committee Stage. It is welcome that the Minister has taken on board a number of the points that were made. At the briefing we welcomed that. He has made a serious attempt to meet us halfway and improve the legislation by doing so. Hopefully the Minister will be in the same mood for some of the other amendments that are there and he might take those on board as well.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 12 and 13 are related and may be discussed together

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 12:

In page 44, to delete lines 30 to 34 and substitute the following:

“(a) an appropriate medical specialist has stated in the specified form that such child is due to undergo medical treatment which, in the opinion of the specialist—

(i) is likely to cause a significant and irreversible impairment to the child’s fertility, and

(ii) such storage is in the child’s best interests, including, without prejudice to the generality of the foregoing, in respect of having objectively, and in all the circumstances of the case, a reasonable expectation of the child being in a position to use the relevant storage (G) or the relevant storage (T), as the case may be, after the child attains the age of 18 years,”.

These two amendments to section 39 are put forward on foot of recommendations from the HSE in relation to the issue of children being provided with AHR treatment for the purposes of fertility preservation. We had a very useful discussion on this on Committee Stage. The first strong recommendation was that it should be an appropriate specialist rather than a registered medical practitioner who decides whether a child should be provided AHR treatment given the clinical importance of that decision, as already discussed in relation to amendment No. 2. This facilitates a broader number of specialties which can provide that very specialist advice.

The second recommendation was related to the removal of a reference to the term “progressive disease”, as the HSE considered it would be more appropriate and safer for this type of fertility preservation to be related solely to the type of medical treatment that a child may be facing as distinct from being based on a disease itself.

The third recommendation, which is reflected in this amendment is the addition of the word “irreversible” in the context of the likely impairment to a child’s fertility. The HSE points out that there are medical treatments which impact on fertility at the point of treatment but after which fertility can be recovered, so it considers it is important that this distinction is captured in the Bill.

The fourth and final recommendation reflected within these two amendments is the addition of a specific criteria to be taken into account when deciding whether the retrieval and storage of the child’s gametes or tissues is in his or her best interests. The new criteria would require the specialist concerned to have a reasonable expectation of the child being in a position as regards the health and capacity to use stored material upon reaching adulthood. In the context of the proposed forthcoming amending Bill further consideration will be given to issues around the position of the consent of the child to storage once they become an adult and their ability to revoke such consent at that stage according to their own wishes.

David Cullinane (Waterford, Sinn Fein)
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The current draft of the Bill provides that children in very limited circumstances can participate in AHR, for example in egg donation, where a procedure or a progressive disorder - that is the terminology that was used in the original draft – is likely to cause infertility. As the Minister said, these amendments remove the references to "progressive disorder". I hear what the Minister is saying that the advice he got is that it is more appropriate to make that decision based on the treatment rather than the disorder or the disease but will he explain why that is the case and the rationale for the advice? I ask because when I first saw the original draft, I was happy enough. It made sense to me. I would like to get a greater understanding of what the logic was of removing “progressive disorder”. The Minister has said that it is advice coming from the HSE but I do not think the thinking or rationale behind this has been properly explained. Why would it not have been possible to leave in the words “progressive disorder”? What was the compelling argument to take that out?

Róisín Shortall (Dublin North West, Social Democrats)
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I also raise concerns about these two amendments. AHR professionals have expressed serious concern about these two amendments and the removal of the term “progressive disorders” from the Bill.

It is accepted that such conditions are rare. However, because of rapid advances in genetics and other fields, fertility preservation is possible. I have also been advised of several such cases in respect of adolescents who are living with various conditions such as Turner syndrome, galactosemia and what is known as BPES.

AHR professionals also argue that the proposed addition of the phrase “irreversible impairment to the child's fertility” does not account for unknowns. It is pointed out that in the field it is well known and accepted that, for example, some children's ovarian and testicular functions can recover following chemotherapy, but this is unpredictable. Also, according to the professionals, in boys there is a lower threshold for freezing sperm because it is relatively simple and non-invasive. I remain to be convinced that such medical practices should be restricted in primary legislation. Again, given the pace of change in this area, surely the Minister’s concerns could have been addressed by way of statutory instrument, rather than placing such restrictions in primary legislation. The thinking among people who have expertise in this area is that, given the pace of change in the area of science, we must ensure the legislation is future-proofed and allows for medical specialties to determine what is medically appropriate and achievable in each case, rather than setting it in stone at this point in time.

Stephen Donnelly (Wicklow, Fianna Fail)
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I thank the Deputies. To be honest, I do not have a policy view on this. This is an expert view from the HSE. As I understand it, the HSE is essentially saying that rather than linking the decision-making on this to a disease, we should link it to the treatment for the child. A disease may or may not cause fertility issues, some of which may be permanent and some of which may be temporary. It is the treatment of the disease or the treatment the child is getting that can have a big impact on fertility. I refer, for example, to a chemotherapy treatment for a child.

For me, this is not a policy issue. I take Deputy Shortall’s point about whether such measures could be provided for in statutory instruments rather than in the Bill. There is, however, no attempt here to restrict access for children. In fact, to address Deputy Shortall’s point, the science is becoming more and more mind-blowing in terms of what can be done. This is a matter of experts in the HSE saying that if are to do right by the child, we must base this on the treatment of the child, and not the disease of the child. That is it. I am just going with the specialist advice that came back from the HSE on this.

David Cullinane (Waterford, Sinn Fein)
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I accept that is what the Minister is doing and that this is not a policy decision of his. The advice is the advice and he has to act on clinical and medical advice. It strikes me that a more sensible approach would have been for progressive disorders to have remained subject to a clinical recommendation by a specialist. That probably would have been a better way to approach it. As Deputy Shortall said, concerns have been raised. It is our job to raise them. I assume the Minister will accept the medical advice he has been given, which I accept has been given to him in good faith. I have to put on record, however, the concern that has been expressed to me through these exchanges about these amendments, which I presume the Minister will press.

Róisín Shortall (Dublin North West, Social Democrats)
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These amendments are too restrictive. Something that may be an irreversible condition now may not be irreversible in two years’ time.

David Cullinane (Waterford, Sinn Fein)
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Yes.

Róisín Shortall (Dublin North West, Social Democrats)
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If the Minister sets the word "irreversible" down in primary legislation, it will exclude people. A condition that is currently irreversible may not be so in even one month's time because, as the Minister says, the pace of scientific progress is such that these things can change quite quickly. On that basis, I think this is a mistake. I do not think any of us is medically qualified to give an opinion on this and we depend on advice from relevant sources. Has the Minister taken advice from professionals working in the AHR area? Members on this side have received such advice. It seems to be a reasonable proposal that the Minister would not set these limits down in primary legislation and would instead consider at least providing for them in statutory instruments, so as to future-proof the legislation. I hope the Minister will consider that for the future.

Stephen Donnelly (Wicklow, Fianna Fail)
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I thank both Deputies. It is specialist advice. The concept of the word “irreversible” is in favour of the patient. Let us take one child as an example. If, based on current medicine, the treatment to be provided to the child would cause irreversible infertility, that would give the child access. Hopefully, that would become reversible through science in the future but if that were the case, it would mean the child would not have access. Therefore, the fact that it is now irreversible is actually in favour of the patient.

I take the Deputies’ points. I think we are all trying to achieve the same thing. I am satisfied that this does not create a more restrictive regime. The specialist advice I have is that this is a better way of assessing the situation the child is in. The word “irreversible” is included because the specialist has to be happy that it is more likely than not that the condition is irreversible. However, to respond to the Deputy’s point about what is irreversible now being reversible in perhaps five, ten or 20 years, that works in favour of the child's being able to access treatment.

Róisín Shortall (Dublin North West, Social Democrats)
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Did the Minister consider doing it on a case-by-case basis?

Stephen Donnelly (Wicklow, Fianna Fail)
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Essentially, this is looking at doing it on a case-by-case basis. It is saying that we should not just categorise any child who has a progressive disease. It is saying we should characterise this based on the treatment we will apply to this child. As such, it does move it to a case-by-case basis.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 13:

In page 45, lines 18 to 20, to delete all words from and including “or” in line 18 down to and including “be” in line 20.

Catherine Connolly (Galway West, Independent)
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Before we move on, I would like to acknowledge the presence of Senator Seery-Kearney in the Chamber. I know she is particularly interested in this Bill and has worked very hard in this area.

David Cullinane (Waterford, Sinn Fein)
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Hear, hear.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 14 to 16, inclusive, are related and will be discussed together.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 14:

In page 47, line 27, to delete “three” and substitute “12”.

This group of amendments, amendments Nos. 14 to 16, inclusive, increases the minimum time period from three to 12 months between the time at which a clinic sends notification of non-payment for storage and that clinic being able to dispose of such stored materials, whether gametes, embryos or tissue. The change follows a good discussion that took place with Deputies on an amendment tabled on Committee Stage by Deputy Shortall. This amendment seeks to address exactly that. We got to a point where we agreed that the Bill as drafted was too restrictive. We believe the period of 12 months strikes a balance, as we discussed on Committee Stage.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 15:

In page 50, line 1, to delete “three” and substitute “12”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 16:

In page 52, line 10, to delete “three” and substitute “12”.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 17 to 22, inclusive, 25, 26 and 29 to 31, inclusive, are related and will be discussed together.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 17:

In page 53, line 30, to delete “abnormalities” and substitute “variants”.

While I certainly was not qualified in terms of the correct terminology, we had a long conversation about the correct terminology to use. This grouping of 11 amendments seeks, on foot of suggestions from Deputy Shortall and others, to refine and improve some of the terminology used in the preimplantation genetic testing, PGT, part of the Bill. Therefore, for example, instead of referring to a person who “suffers” from a particular condition, the relevant provision now simply states that he or she “has” that condition. Other changes will replace terms such as “abnormality”, “mental disability” and “defects” with more appropriate terms such as “variants”, “intellectual disability” and “disorders”, respectively.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 18:

In page 53, line 33, to delete “mental” and substitute “intellectual”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 19:

In page 54, line 2, to delete “a child who suffers from” and substitute “an existing child who has”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 20:

In page 54, line 12, to delete “abnormalities” and substitute “disorders”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 21:

In page 54, line 14, to delete “abnormal” and substitute “unbalanced”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 22:

In page 54, line 16, to delete “defects” and substitute “disorders”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 23:

In page 54, line 24, after “2007” to insert “or equivalent as approved by the AHRRA”.

This amendment concerns the issue of relevant specialists, which we discussed on Committee Stage. AHR professionals have raised concerns about the fact there is a scarcity of relevant specialists in Ireland and, because of this, many patients access services in other jurisdictions, in particular the UK. Therefore, there is clearly a need to ensure such international specialists are appropriately qualified and, hence, the need for approval by AHRRA. Were Ireland to have sufficient relevant specialists in the future, such approval could be withdrawn, of course.

On Committee Stage, we had a similar discussion around narrow definitions in the context of Ireland's very small pool of genetic specialists. The Minister agreed with the principle of my Committee Stage amendment, as far as I can recall, and acknowledged there may be scope to give AHRRA or another appropriate body the power to recognise relevant qualifications and specialists in the UK or elsewhere. The Minister committed to asking his officials to work with the various clinical governance groups to see what would be an appropriate framework to put in place. I understand that no such framework has been proposed in the Minister's Report Stage amendments and I wonder has the Minister had an opportunity to rethink his position in this regard. We could very easily see a situation where appropriate specialists were not available, given the small pool.

David Cullinane (Waterford, Sinn Fein)
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As with Deputy Shortall, it has been highlighted to me by a number of professionals working in this field that there is a very small number of specialists in the State operating in some of these areas. We see this in a number of unique specialist areas where it can be difficult to recruit as there are very few of them. This amendment seeks to provide AHRRA, the assisted human reproduction regulatory authority, with the authority to recognise other equivalent specialists trained at a different level, as may be appropriate.

I need to point out that this does not open the door to any non-specialist practitioners to practice in the area without approval from AHRRA, which is the important point. It is a similar point to that made by Deputy Shortall. I hope the Minister will engage with us on this amendment.

Stephen Donnelly (Wicklow, Fianna Fail)
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I think we were all in a similar position on Committee Stage. We went back to the HSE with that in mind to ask whether we could facilitate this for the reasons we all discussed on Committee Stage. We got very strong pushback on patient safety grounds and I will now go through that. I was hoping to come in with something facilitating the discussion we had but we got very strong pushback. The HSE and others in the field came back and they unequivocally did not support the recommendation, which was one I was willing to support, with regard to the specialist input permitted under the Act by means of overseas doctors who are not accredited as specialists in Ireland. The concern is not whether they live in Cork or Manchester; it is whether they are accredited by the Irish Medical Council because that is our way of ensuring patient safety and ensuring that whatever specialist advice is being given is up to a level that we in Ireland can stand over. The determination of equivalence vis-à-vis specialist division registration is the legal domain of the Irish Medical Council and, as such, there was very strong concern that it would be legally attributed to another agency, essentially.

This is something I wanted to do and something we need to facilitate. However, we have very clear patient safety advice that we cannot just go around the safeguards that we have in place or go around the Medical Council. What someone living in Manchester, London or Stockholm could do is apply for accreditation via the Medical Council, in which case it does not matter where they are living. They would then be able to provide that advice and we would know, from a patient safety perspective, that all of our own clinical governance is in place and that we have done all of the background checks that are required for any specialists or, indeed, any doctors to work in Ireland. I hope colleagues will appreciate the governance and patient safety aspect and be open, as I am, to the argument that, from a patient safety perspective, the governance has to be in place. However, there is no issue with a foreign specialist registering with the Medical Council and then doing exactly what the ask is, which is providing this somewhat scarce expertise.

Róisín Shortall (Dublin North West, Social Democrats)
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I do not think any of us want to go around the safeguards at all. We are addressing this because it could arise as a practical difficulty in the future, given the scarcity of appropriately qualified medical professionals. There must be thousands of people working in this country who are trained abroad, particularly in the UK. I am not aware that they have to go through registration here. Very often, specialists from the UK, including Northern Ireland, would be brought in to advise on different things, and we can think of examples of particular people who have been brought in for that purpose. There is a recognition, certainly between Ireland and the UK, in regard to qualifications and areas of expertise. If people were to come in as advisers and specialists in this area, it is very hard to understand why they would have to go through the whole registration process, given we recognise qualifications from the UK, as an example. We could certainly limit that in terms of the countries where there are already agreements between Ireland and the other countries in regard to the recognition of qualifications. I do not think for a moment that it is insurmountable. It is a mistake not to avail of that opportunity because we do not want to find ourselves in a situation where there are no medical experts available in this particular area.

David Cullinane (Waterford, Sinn Fein)
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We would all have regard to patient safety grounds and the patient safety advice that is given. Again, this is advice that the Minister sought and was given, and I accept that it came in good faith and that he is accepting it in good faith. There is strong pushback from the HSE and the pushback is on patient safety grounds. However, what the amendment is seeking to do is to give the authority to AHRRA to make that decision in regard to the specialists who would be used.

I hear what the Minister is saying. Of course one would want all healthcare professionals to have their accreditation through the Irish Medical Council. That is the optimum. That is what we want. However, in circumstances in which there are limitations in respect of some specialties, I do not think it is outrageous, nor do I think it is trying to get around safeguards or take shortcuts that there could be arrangements with other countries that have very similar standards and guidelines to ours in respect of accreditation. That is where the authority would come in and be able to make that determination. Maybe that is more complicated to do by way of amendments, and maybe our amendments do not fully satisfy what we are trying to achieve here, but this is an issue that has been raised in good faith by professionals with us. I can see the logic in the issue they are raising and I can see that if I or Deputy Shortall were in the Minister's shoes, we would have to have regard to the advice we would get. Any time patient safety grounds are raised, the Minister has to have regard to them. I do not doubt that for one second. I will not press the amendment for that reason. I put faith in the advice I get, and when patient safety is raised, we have an obligation to listen. It would be worthwhile, however, to go back and maybe have a discussion again. There are countries that have similar arrangements in place. We are not saying this should involve countries where the standards are lower or where the accreditation standards are not equivalent to what they are in Ireland. Actually, the word "equivalent" is in our amendment as well.

Stephen Donnelly (Wicklow, Fianna Fail)
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As I said, I approached this with a view to facilitating it. I will read for the Deputies the exact clinical advice we got back.

We unequivocally do not support or recommend this approach and would highlight the risks of overseas doctors being involved in the provision of such clinical advice and decision-making in such a sensitive area who operate outside the context of Irish legislation and the Irish health service, both public and private.

This is purely a patient safety issue. To both Deputies' points, however, I think there are other ways around it, and the skill set we are setting the AHRRA up with, on reflection, is not one that would say, "Yes, we, the AHRRA, can identify a suitable skill level in this particular science." That is not the skill set we are giving it. That is the Irish Medical Council's bread and butter. I do have a lot of sympathy with the points being raised. As this rolls out, there probably will be ways to address it.

The other feedback we got was that they are not convinced there will be a scarcity, but if there is a scarcity - we have to accept there might be - there are, to Deputy Shortall's point, arrangements in place. We have the treatment abroad scheme and the cross-border directive so we send people abroad all the time - to France, Germany or wherever it may be.

David Cullinane (Waterford, Sinn Fein)
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If we could avoid sending them abroad, would it not be better?

Stephen Donnelly (Wicklow, Fianna Fail)
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Obviously, but under the treatment abroad scheme, for example, it might be possible to identify centres of excellence around Europe where we could say, "Yes, you can go for this particular thing because the treatment abroad scheme works on the basis that it is something we provide here under the public system and you cannot get it, so you can get it abroad." I have a lot of sympathy with the points being raised. I have to stick with the patient safety advice coming back. It is very strong. On reflection, I do understand that the AHRRA will not have the skill set to make the kinds of determinations we discussed.

Róisín Shortall (Dublin North West, Social Democrats)
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I do not want to go against what the Minister says is very strong advice. I do not know from whom the advice came but I think it is unnecessarily restrictive. The Minister has made the case himself in the points he has made, but it is just very hard to understand. I certainly hope there will not be issues that arise very soon in this regard and in regard to the availability of appropriately qualified staff. As I said, we do this in a whole lot of other areas and in respect of other schemes, and it is very hard to understand the Minister's advice.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 24:

In page 54, line 26, to delete “sex.” and substitute “sex;”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 25:

In page 54, between lines 26 and 27, to insert the following: “ “variant” means a permanent change to the DNA sequence that makes up a gene that may cause disease or be part of normal human variation.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 26:

In page 55, line 1, to delete “abnormality” and substitute “variant”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 27:

In page 55, to delete lines 3 to 10 and substitute the following: “(a) PGT-M or PGT-SR is being undertaken, or

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

This amendment updates section 46, which relates to the provision of PGT-A, or pre-implantation genetic testing for aneuploidies, which are embryos with an unbalanced chromosomal complement. Arising from feedback from Deputy Shortall and input from experts in the field, I agree that there was a risk of the provisions in this Bill related to this form of PGT being overly clinically prescriptive in primary legislation. Therefore, section 46 will now allow for the regulatory authority to define and provide guidance as to the criteria that will be applied for PGT-A to be undertaken. This is therefore to facilitate the Committee Stage amendment.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 28:

In page 55, line 13, to delete “a child” and substitute “an existing child”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 29:

In page 55, line 14, to delete “suffers from” and substitute “has”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 30:

In page 55, line 28, to delete “from which such child suffers” and substitute “which such child has”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 31:

In page 56, line 16, to delete “abnormality” and substitute “variant”.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 32, 64, 80 and 84 are related and will be discussed together.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 32:

In page 57, between lines 14 and 15, to insert the following: “Best interests of the child

52. 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.”.

This group of amendments concerns the issue of the best interests of the child. Neither the AHR Bill nor the Children and Family Relationships Act contains the paramountcy principle. That principle is that courts shall regard the best interests of the child as the paramount consideration. Both the Ombudsman for Children and the special rapporteur on child protection recommended that this principle be inserted into the Bill. I will quote from both their comments. The ombudsman in his report in 2022 said:

The OCO recommends that explicit provision should be made in the 2022 Bill for the best interests of the child to be treated as the paramount consideration in respect of all relevant proceedings and processes within the scope of the 2022 Bill that affect children.

The special rapporteur in 2020 said:

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.

On Committee Stage, I put forward that these amendments should be taken on board and the Minister rejected them. The Minister said at the time that "it would undermine the protections of the children we are legislating for" and "could unintentionally undermine the safeguards we are putting in place in the legislation".

Many of the Bill's safeguards, however, have nothing to do with protecting the child but, if not complied with, would result in a parental order being refused. For example, if a surrogate was 24 years old when the child was conceived or the surrogate was habitually resident for 23 months instead of 24 months before entering into a surrogacy agreement, people may not have complied with every aspect of this highly prescriptive framework, but that does not automatically mean they engaged in unethical or exploitative practices.

Subjective assessments and discretionary provisions are a cornerstone of family law. Why would these parental orders be treated differently?

I suggest these amendments relate to parental orders for international surrogacy and I would argue that the best interests of the child should be grounds for a waiver. Such a provision is not intended to undermine in any way the requirements of the Act but, as I have previously argued, to put the child's interests front and centre. I may agree with the principle underpinning the Minister's framework and safeguards, and I do not doubt his bona fides in this regard but I fear such a prescriptive system fails to recognise the unavoidable reality that children will continue to be born outside the State's criteria. While every effort should be made to comply with the framework, some flexibility is required, particularly where nothing unethical or exploitative took place.

The UN special rapporteur on the sale and sexual exploitation of children stated in 2019 that a best interests assessment is an individual case-by-case process, but what the Minister proposes is a blanket provision that does not allow for case-by-case consideration. The special rapporteur went on to recommend states should: "[d]etermine on a case-by-case basis, the substantive content with regard to the concept of the child's best interests... according to the specific situation of the child concerned, taking into account the personal context, situation and needs of the child." Similarly, in 2019 the European Court of Human Rights stated the best interests principle requires in surrogacy cases that each situation be examined in light of the circumstances of the case. It also stated the best interests principle must be assessed primarily in concreto rather than in abstracto; that is, with reference to verifiable facts rather than theory.

I cannot but note and heed what has been said by the special rapporteur, the Ombudsman for Children and the European Court of Human Rights. All of those highly respected bodies make the case that the best interests of the child should be the primary consideration in this and the way to ensure that is to ensure each child is considered on a case-by-case basis. For that reason, I will press, particularly, amendment No. 32.

David Cullinane (Waterford, Sinn Fein)
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This is complex legislation. This amended version of it is lengthy and covers many areas. I have in the past commended the Minister's officials on the work they have done. It has been phenomenal but we will get to that later as we conclude the Bill. In all the exchanges we had with the officials and the Minister on many issues, the Minister always said the best interests of the child have to come first. Everybody accepts that. That has always been the starting point when looking at these issues. There are rights the intending parents have and that the surrogate mother has, so there are lots of competing rights, but of paramount importance must be the rights of the child.

Deputy Shortall referenced the children's ombudsman's comments and those of the special rapporteur. I read those in advance of the session, particularly the ombudsman's view, which is very compelling. I would be minded to support the amendment. It seeks to insert "Best interest of the child" sections and references to place the best interests of the child as the paramount concern of the court in any proceedings. That is safe, logical and the right thing to do. If the Minister is not accepting the amendments, I would be interested to hear why not. Is it that the advice is that the best interests of the child are already protected and this is unnecessary or is there some other reason? We did not really get an answer to that in any of the sessions so far. I will make up my mind based on the Minister's response to the amendments.

Stephen Donnelly (Wicklow, Fianna Fail)
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We are all trying to get this right and to put the child front and centre while we balance important protections for the surrogate and rights of the intending parents. As the Deputies have said, no country has legislated for international surrogacy like this before.

There are a few points I want to make on this. First, the best interests of the child test is in the legislation. I will come back to this. It is in the legislation in the context of important layers of protection we are putting in place for the surrogate mother where we know there is potential risk of exploitation abroad, and indeed for the child.

I have great respect for the rapporteur and ombudsman, though the comments the Deputy cited - correct me if I am wrong - were not in response to the Bill. It was a broad comment for us to take into account. We have taken it into account and put a best interest of the child test in. The question we are debating and on which we had a long debate on Committee Stage is not whether the best interests of the child test should be included because it is included but whether it should trump all the other criteria we set forth so that even if an intending parent or intending parents return to Ireland with a child and have not met any of the safeguards, they could ask for the mercy of the courts, essentially to ignore the safeguards in legislation and grant them a parental order anyway. That is what this comes down to. I have serious concerns about this.

We are setting up an assisted human reproduction regulatory authority specifically to engage with intending parents ahead of any surrogacy or embryo transfer. One or two intending parents go to the AHRRA and say: "We have a surrogate in wherever it is, we meet all the criteria and she has been given legal advice and she has been protected in all the following ways, we are covering all of her costs, she has full access to medical treatment and all of the protections that we are putting in place through this big piece of legislation, we are meeting them." Then the AHRRA grants pre-approval so the intending parents do it and come back with their new child and the courts go through the various criteria and then the judge says: "Here's you parental order." That is how we are doing this.

If the best interests of the child test supersedes all of that, it means intending parents could say they have a commercial surrogate somewhere, which is not allowed; that she has no protections, which is not allowed; that they are not covering her costs, which is not allowed; and that she may or may not have legal advice or access to proper healthcare but they are not checking or guaranteeing any of that. They may be proceeding with it for very good reasons because they are desperate to have a child but they are not complying with any of the safeguards and will go to the court in Ireland and say it does not matter because the judge has the legal power to grant a parental order anyway because it supersedes any of the protections.

I would be really concerned if we were to bed that into the legislation. We are saying to any intending parents, who are desperate to have a child, that we in Ireland are doing what no other country is doing. We are legislating for this and setting up a statutory authority to provide expert advice. We are making sure that all of the protections are in place in the country abroad, or indeed in Ireland, so that the surrogate mother is protected. If people cannot comply with that, we will not grant them pre-approval. If we do not grant people pre-approval, they should not proceed with the surrogacy and come back to us and request that the parental order be granted anyway. We are saying to people that they should not do that. Is this the kind of issue that could be looked at in the review after three years? I have no doubt it could. However, in setting up this system at the start, we have to make it clear to everyone who wants to use this and to the other countries around the world where surrogate mothers may live that we are not providing a back door to bypass the safeguards. That is why we need to proceed with the Bill as we have it in front of us.

I know this amendment is being put forward with the very best of intentions but it opens up a potential back door for people to ignore the safeguards and throw themselves on the mercy of the judge. I do not believe that is how we should proceed and I do not believe it would send the right message to other countries. We need to say to other countries that we have really clear safety criteria in place and if people do not meet those criteria and proceed anyway, they will not be granted a parental order in our country. I appreciate that this is harsh and I know not everyone will agree with this position but that is where I am at.

Róisín Shortall (Dublin North West, Social Democrats)
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The fact that what the Minister is proposing in this legislation - which in the main, people agree with - has not been done in any other country means that we have to proceed with caution. The cautionary principle is that in any circumstances that involve a child, the best interests of that child have to be paramount. This does not meant that any of the other safeguards can be disregarded but it does mean that the best interests of the child have to be considered first and foremost. I think that is a good principle. It is proposed in the context of this legislation - not at this stage - by the Office of the Ombudsman and by the UN special rapporteur. For that reason, I am proceeding with this amendment. I think it is a very important one. It is regrettable that it has not been taken on board. The Minister makes the point that in a review in a few years' time, if there are any issues about that or if there is any abuse, as the Minister is suggesting might happen, that can be dealt with at that stage. The starting point has to be about the primacy of the best interests of the child. For that reason, I am pressing the amendment.

David Cullinane (Waterford, Sinn Fein)
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I supported the retrospective parental recognition for the same reasons as the Minister and others did. It was because it was the right thing to do. I also support putting in place a new regime, a new set of regulations and a new process that allow for international surrogacy in a way that no other country has done. We are agreeing here. I have to put my cards on the table and say that we are all signing up to this process. There cannot be any bypassing of the process. I have made it clear publicly, and I will say it again here, that once we agree the legislation and the rules, people will have to abide by them. I do not see it as harsh. I see it as making sure we take into account all the moral and ethical issues that have been raised, particularly regarding avoiding commercial surrogacy and putting in place arrangements which I think we all agree with. We have had very straight and frank conversations about them and I fully support the logic of the Bill and of everything the Minister is trying to do. I have been saying that for some time.

I am very taken by what the Minister has said. I would be very concerned if there was any possibility that the safeguards we have put in place could be bypassed by some sort of open-door system. I am seeking clarity from the Minister on this. If I am right, what I think he is saying is that the concern that has been expressed to him, or the concern he has, is that if we accept this amendment, the courts will decide. The Minister is right; all the other issues he has raised are real possibilities but the court would have to take the primary concern of the best interests of the child. A court or a judge could decide that it is in the best interests of the child to set aside all the other protections and there is nothing I, the Minister or anybody else can do about it. That would go against the logic of the Bill and of what we are saying to people, which is that we are setting up rules and asking people to abide by those rules and if people do not and engage in commercial surrogacy or bypass the regulations, parental recognition will not be forthcoming. I think that is the right course of action. I will listen to what the Minister says when he replies but I am very taken by his initial response.

Stephen Donnelly (Wicklow, Fianna Fail)
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That is exactly it. We are setting up a system whereby people have a pre-agreement from the authority that sets out the criteria in law that people must meet. Having met those criteria and coming back, this amendment does not come into play because the court will say that a person has met all the criteria. Remember, the best interests of the child are already in the Bill. The only time that I can see that this amendment comes into play is if people think they are simply not going to meet the criteria. They see they will not get a pre-parental order because they cannot get one as they do not meet the criteria but then they decide to go ahead anyway. What this would do is allow the judge to say the person did not have pre-agreement and, by definition, has not met the criteria but is proceeding anyway. It is the question of whether it supersedes all of the other criteria. The only time this comes into play is for somebody who does not get pre-approval. I really need to send out a message that we are not in the business of bypassing the pre-approval. People have to have pre-approval. If they do not get it, they should not proceed. If they do so regardless - and we cannot stop people - they will not be able to go to court and request a parental order. It is for exactly that reason. I understand the good intent of the amendment but it is only a question of whether it can supersede everything else.

Róisín Shortall (Dublin North West, Social Democrats)
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The Minister is speaking as if all of the other safeguards can be disregarded. That is not the position. All those safeguards should remain in place but the primary consideration should be the best interests of the child. That is a long-established principle, recognised as one we should adhere to. The Minister is talking about a worst-case scenario where all the other safeguards are dispensed with and this is the only thing that matters. A court will decide on this but irrespective of the other circumstances, the main consideration should be the best interests of the child. That is the point I am making. I think this is an extra safeguard. It is not a matter of dispensing with the other safeguards.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 33:

In page 58, to delete lines 16 to 21 and substitute the following:

“(3) Without prejudice to the generality of section 151, 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 understands that, should the agreement be approved under this section but he or she dies before the embryo transfer concerned has been effected, such approval will be treated as revoked from and including the date of death.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 34:

In page 59, between lines 22 and 23, to insert the following: “(8) In the case of two intending parents, should a surrogacy agreement be approved under this section but an intending parent dies before the embryo transfer concerned has been effected, such approval shall, by virtue of this subsection, be treated as revoked from and including the date of death, and the other provisions of this Act shall be construed accordingly.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 35:

In page 59, line 25, after “satisfied” to insert “, based on the information available to the AHRRA,”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 36:

In page 61, lines 8 and 9, to delete “a registered medical practitioner” and substitute “an appropriate medical specialist”.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 37, 38, 57 and 58 are related and will be discussed together.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 37:

In page 61, line 12, to delete “pregnancy” and substitute “clinical pregnancy”.

This grouping of four amendments relate to the addition of a definition of "clinical pregnancy" in the context of eligibility requirements of a perspective surrogate mother. The change is proposed on foot of Committee Stage amendments from Deputies Shortall and Kenny. We had a good discussion on this and we all broadly agreed that this definition would be helpful. The definition agreed with expert advisers is that a clinical pregnancy means a pregnancy of not less than six weeks in gestation and in respect of which there is evidence of a gestational sac having being identified through an ultrasound scan. That is what the experts say. This would mean an early miscarriage would not necessarily disqualify a perspective surrogate mother from trying again to become pregnant, while maintaining the limits on the number of times a surrogate mother can participate in a surrogate agreement to protect the surrogate mother as discussed previously. I hope colleagues will see this as amendments put forward reflecting the debate on Committee Stage.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 38:

In page 61, between lines 12 and 13, to insert the following:

“(b) In paragraph (a) -

“clinical pregnancy” means a pregnancy not less than six weeks in gestation and in respect of which there is evidence of a gestational sac having been identified through an ultrasound scan;”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 39:

In page 61, line 13, to delete “(b) In paragraph (a),”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 40:

In page 63, line 31, after “any” to insert “net”.

Catherine Connolly (Galway West, Independent)
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Amendments Nos. 41 and 61 are related and will be discussed together.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 41:

In page 67, to delete lines 18 to 26.

Under the current process, as I understand it, a child born through surrogacy would reside with his or her intending parents with the consent of the surrogate. As I am sure the Minister will be aware, Dr. Claire O'Connell has repeatedly pointed out that this is not equivalent to legal custody and puts the child in a very precarious legal position. In theory, a surrogate could change her mind repeatedly but the intending parents would still have no legal basis on which to refuse to return the child. These sections also appear to negate the genetic father's right to apply for custody of the child under the exiting provisions of the Guardianship of Infants Act 1964. According to the Bill, it seems that the surrogate's consent is absolute unless she is, for example, dead or cannot be located. It is also unclear as to who would dispense with the surrogate's consent as these sections do not deal with court applications and who would enforce it. Given these uncertainties, I propose removing these sections entirely as the safest way to deal with this matter.

Stephen Donnelly (Wicklow, Fianna Fail)
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The two amendments seek to remove the provision in the current text of the Bill that would allow for a surrogate mother to consent to a child born as a result of surrogacy to live with the intending parents. We had a long debate about this on Committee Stage and we have given it serious consideration. However, the provision in the Bill is an important one, taken in conjunction with the amendment of the Guardianship of Infants Act. That was already agreed by the select committee and that provides for a clear process to enable intending parents to an effective custody of the child and to carry out the duties of guardianship in the immediate post-birth period. As we discussed on Committee Stage, I am not convinced there is a perfectly right answer to this. It is a difficult situation where there are intending parents, a surrogate mother who has just given birth, a baby moving to the intending parents and then there is a question around rights in that period between the birth, guardianship and full parental orders. Again, I acknowledge that these amendments are proposed with the very best of intentions. I examined this it in detail and while there is no perfect way to address the transfer of a child from a surrogate to guardians to intending parents, the current situation represents an established process that is working well so far. It is working under the guardianship Act. It is used in our maternity hospitals on a regular basis with guardians and, therefore, we are intending to proceed with that. Then again, this may be something that could be looked at as part of the three-year review.

Róisín Shortall (Dublin North West, Social Democrats)
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The very fact that the Minister is saying he will look at it again in three year's time indicates uncertainty about what is being proposed. The two provisions I have referred to are very vague. If the surrogate mother consents to the child being cared for by the intending parents, who does she consent to and who oversees that? If she changes her mind, and she may do this a number of times, it puts the child in a very difficult and precarious situation legally. If that continues for some time, who actually then enforces the arrangement? Rather than having a vague situation like that there, if the Minister is not going to provide for a body or an agency to oversee that, it is better not to have it there at all.

Stephen Donnelly (Wicklow, Fianna Fail)
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Thinking that it may be something that should be looked at in three years is simply to keep an open mind in the same way that we have numerous amendments on Report Stage that came out of amendments tabled by Deputies Cullinane, Shortall and others and the Committee Stage debate. I am trying to do this in a collaborative approach. That is the only reason I am referencing that any of these issues could be looked at. I also want to acknowledge that there is no perfectly right answer to any of this so we need to be open to that. We need to be open to the fact that some of the things we are doing with the best of intentions may not transpire in the way we had hoped. I am just trying to keep an open mind. What we are doing here is following the Verona Principles, which were broadly accepted by all of us and certainly by the Joint Committee on International Surrogacy. Essentially, these relate to the non-enforceability of the surrogacy agreement, which the Verona Principles state as very important and provide that the consent of the surrogate through all phases is important. That is the principle we are going on. It is not a perfect process. It is an unusual situation. It is currently in law and the proposal we are using is the current established process that appears to work. It may not work perfectly in all circumstances and I absolutely take the Deputy's point that for the intending parents it could lead to anxiety because the agreement of the surrogate mother is required. I fully accept that. However, the principles we are going on are the established Verona Principles and the established process in Irish law at the moment. I want to keep an open mind to the fact that this is in accordance with the principles and with established practice here and we should keep an open mind to seeing how it will have transpired in three years.

Róisín Shortall (Dublin North West, Social Democrats)
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I would be happier to give the Minister the benefit of the doubt on that if he had agreed to my earlier amendment that in all matters the best interests of the child should be considered. There can be conflicting interests and that is the danger in these circumstances. Who adjudicates on this when there are conflicting interests? For that reason, rather than having an ambiguous situation that could be quite problematic, it is better not to have made those provisions in the legislation. That is why it is important to remove that section.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 42:

In page 67, line 28, to delete “(8)” and substitute “(7)”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 43:

In page 67, line 36, after “parents” to insert “or one of them”.

Róisín Shortall (Dublin North West, Social Democrats)
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What group are we on?

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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We are on individual amendments. It is amendment No. 43 now.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 44:

In page 68, line 26, to delete “(2) and (5) ” and substitute “ (2) to (5)”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Amendments Nos. 45, 46, 65, 66, 75, 76, 81 and 82 are related and may be discussed together. Amendment No. 46 is a physical alternative to amendment No. 45; amendment No. 66 is a physical alternative to amendment No. 65; amendment No. 76 is a physical amendment to amendment No. 75; and amendment No. 82 is a physical alternative to amendment No. 81.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 45:

In page 69, to delete lines 1 to 4 and substitute the following:

“(2) (a) The court may waive a requirement under subsection (1) for consent from an intending parent, in the case of two intending parents, if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her, or

(iii) lacks the capacity to make a decision in that regard.

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

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find her, or

(iii) lacks the capacity to make a decision in that regard.”.

There has been a lot of debate in the background on these amendments in preparation for today. I will provide a rationale and then we might discuss it. Amendment No. 45 adds a provision whereby the requirement for the consent of an intending parent to the granting of a parental order may be waived where he or she is dead, lacks capacity or cannot be found. The first of these allows for the potential for an intending parent who dies after the embryo transfer to be named on the parental order, as discussed in the context of amendment No. 3. There has been a lot of back and forth with the advocacy groups. Colleagues may have been involved themselves. Senator Seery Kearney and I spoke on this and I know Deputies Shortall and Cullinane have been engaged on the matter as well. The policy intent is to provide significant judicial discretion. Representative groups told me they are concerned that when a mum with her child applies for a parental order and the intending parent, an estranged father in some cases and in the example I was given, potentially an abusive ex-partner, says they do not agree, are not dead, have capacity and can be found, that puts the mum and her child in an impossible position. The clear policy intent is that judges will be able to apply discretion when the man - it is not necessarily a man but it has been so in every example I have been given - is not willing to provide consent or the surrogate mother might say she has not been involved for ten years but a large payment would help her provide her consent and if she does not provide consent, the mum cannot get the parental order, the policy intent is that in such cases judges will have discretion to override the objections of the estranged partner or surrogate and grant the parental order.

We believed that the Bill as we have it did that because it gave the best interests of the child. We got recent advice and legal concerns stating that the constitutional strength of the relationship between the biological parent and the child is so strong that if they wanted to challenge the judge's discretion, there is a good chance they would win. Therefore, a more comprehensive piece was required. One option is to do it through Committee Stage in the Seanad. I am nervous about doing so because the Bill would have to come back to the Dáil and there is a real chance it would not be passed before the Dáil goes into recess, which we have to do. I certainly want to do that. We are putting in place parallel amending legislation which will be ready when the Dáil comes back. It just requires more detailed work. To be clear, I have had long conversations on the policy intent. This provision is being brought in as a step in the right direction such that it is clear that if that person is deceased, incapacitated or cannot be found, their consent is not required. We will address the other issues to give that judicial consent as well. We will not leave any man or woman in a situation where they seek a parental order to which they have every right and an estranged partner or surrogate who has not been involved in a very long time seeks to thwart that for non-ethical reasons. The judge will be able to grant that parental order. That is the background to these amendments.

David Cullinane (Waterford, Sinn Fein)
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We discussed this earlier, perhaps with officials or the Minister. When concerns were raised, that was the exact advice we got - that the Bill already deals with this. That there is now legal advice that says, hang on a second, we may well need to do something else, means we have to do it. All of those scenarios the Minister pointed out could happen. We always look at worst-case scenarios but sometimes the worst-case scenario happens. Circumstances in which someone who is an abusive partner or an abusive individual towards somebody else can thwart somebody else's rights are unacceptable. I agree with giving discretion to the judge. It makes sense. If it is the case that the parallel process the Minister is putting in place is the only way he can have the time to put in place a more comprehensive solution, I am willing to support that. I will not hold up this legislation. Like the Minister, I want it to be passed. I think we all want it to be passed, though not at any cost. The proposition the Minister put forward is reasonable and I will support it.

Róisín Shortall (Dublin North West, Social Democrats)
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I note the Minister's amendments to these sections include the phrase, "lacks the capacity to make decision in that regard". I ask the Minister to consider further grounds for waiving consent. I strongly argue that the best interests of the child must be the paramount consideration. The Minister referred earlier to this already forming part of the legislation but it is in the legislation as one of a number of criteria. The whole point about the test relating to the best interests of the child is that it is paramount. That is what has been proposed by a number of eminent agencies. The UN Convention on the Rights of the Child noted that the best interests of the child may conflict with other interests or rights but must be treated as the primary consideration. We bypass the provisions of the UN convention at our peril.

In the 2018 case of CB and PB v. the Adoption Authority of Ireland, the Supreme Court held, "The best-interests guarantee contained in Article 42A is not to be seen as some form of interpretative Trojan horse which can undermine the intent of the Act."

I believe this statement to be equally relevant to surrogacy, especially given the moral hazard argument put forward by the Minister on Committee Stage. We should allow judges to put the child front and centre when determining whether a parental order should or should not be made. The inclusion of this principle and the proposed waiver for unreasonably withheld consent is not to prejudge any application, but to allow the particular facts of a case to speak for themselves. I reiterate the point I made earlier that the best interests of the child must be considered on a case-by-case basis.

Stephen Donnelly (Wicklow, Fianna Fail)
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We are debating two different things. One is best interests, which we debated in one of the previous amendments in terms of its primacy. I accept the ombudsman's hazard position. I just hold a different position for the reasons we have set out. The specific amendments are about the grounds on which a judge can grant a parental order, even if a biological parent, a surrogate or both are saying they do not want this. There may be reasonable grounds for that, but there may be unreasonable grounds and those are the ones I have been discussing over the past few days. What the Deputy is seeking to do with her amendments is essentially where we are looking to go. The advice we had until recently was that this was covered and that there was sufficient discretion for the judge to do what we all want in the best interests of the child. We are all trying to achieve the same thing. We got recent legal advice which stated something different. The constitutional link is very strong and requires some careful consideration. All I am doing is giving my Department and the Attorney General's office more time to come up with a legally robust version of the Deputy's amendments. That is all it is. The best way to do that procedurally is to crack on and get this Bill passed. We particularly want to commence the sections around retrospective and give these parents and children access to the courts for these parental orders, in parallel with some robust legal provisions in the amending Bill to cover the exact situations we are concerned about.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Róisín.

Róisín Shortall (Dublin North West, Social Democrats)
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Are we on first name terms? That is becoming a bit of a habit with Sinn Féin.

Essentially, the Minister just stated that this is a play for time. I apologise, he did not use the term "play", but he wanted time to achieve a legally robust version of what is proposed in the amendment. The implication is that this is not legally robust. If you want to achieve a legally robust-----

Stephen Donnelly (Wicklow, Fianna Fail)
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I stated that the Deputy's amendments are not legally robust. I was not referring to my amendments, which are legally robust.

Róisín Shortall (Dublin North West, Social Democrats)
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However, the grounds I have given surely stand up to any kind of scrutiny. The Minister is rejecting them out of hand rather than accepting that there is a valid principle. He is saying that the wording I have put forward is not legally robust. Why is he not then seeking legally robust wording-----

Stephen Donnelly (Wicklow, Fianna Fail)
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I am.

Róisín Shortall (Dublin North West, Social Democrats)
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-----to amend this legislation now-----

Stephen Donnelly (Wicklow, Fianna Fail)
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Time.

Róisín Shortall (Dublin North West, Social Democrats)
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-----and not at some point in the future?

Stephen Donnelly (Wicklow, Fianna Fail)
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Time.

Róisín Shortall (Dublin North West, Social Democrats)
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This is legislating in haste. The approach the Minister is taking is just not very satisfactory. It is about speed rather than provisions that are legally sound. I am disappointed with his response.

Stephen Donnelly (Wicklow, Fianna Fail)
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To be clear, I am stating that we need a legally robust version of what the Deputy is attempting to do. The limited exemptions we are putting in place are legally robust because they are limited. Let us play it out. We could do it the Deputy's way. We could say we will take some time and bring this into the Seanad on Committee Stage. We will give it a few weeks. That is what it will require, but the Bill will not be passed before the recess. We do not know what is going to happen between September and February. We do not know, but I am not willing to take that risk because if an election is called before we get through all Stages, the Bill, in its entirety, will fall. It will be gone and the next Minister for Health will have to read himself or herself into this entire brief. That takes time when it comes to legislation of this nature.

David Cullinane (Waterford, Sinn Fein)
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I know it all.

Stephen Donnelly (Wicklow, Fianna Fail)
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They will have numerous conflicting pressures, and this could take a long time. I am stating clearly that I am not willing to take that risk. I commit to having this Bill passed for the children and parents who are desperately waiting for it. If that means also having amending legislation going in parallel immediately after we come back in September, that is absolutely what I am proposing. Is it perfect? It is not, but we are in the art of the possible here. I am not willing to risk this Bill falling. That is where it is at.

Róisín Shortall (Dublin North West, Social Democrats)
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Nobody wants to see this Bill falling, but the Minister has had quite a bit of time on it, and I would expect that he addresses the uncertainties there at the moment. It is regrettable that he has not done that. I have to say it is not great practice from the point of view of legislation that is so important. It is a pity we are not getting it right first time round.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Amendment No. 45 has been agreed. As a result, amendment No. 46 in the name of Deputy Shortall cannot be moved.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 47:

In page 78, to delete lines 16 and 17 and substitute the following:

“(a) the law of the jurisdiction relating to surrogacy, including whether or not that law—

(i) permits a commercial surrogacy referred to in section 93, and

(ii) requires intending parents or one of them (or, in the case of a single intending parent, that intending parent) to be resident or domiciled in the jurisdiction;”.

This amendment adds a provision in respect of the matters which the regulatory authority should have regard when deciding whether to introduce jurisdiction onto the green list of approved surrogacy jurisdictions. This will require the authority to consider whether the jurisdiction requires intending parents in a surrogacy to reside in that jurisdiction. Broadly speaking, the provisions in Part 8 arraign the establishment of parentage in respect of children born to intending parents living in Ireland. The recognition by the State of parentage established in another jurisdiction and of children born in that jurisdiction to Irish citizens living there is a separate matter that I intend to deal with in the proposed amending Bill.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 48:

In page 80, to delete line 35 and substitute “specified in section 107(2);”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 49:

In page 81, line 13, after “satisfied” to insert “, based on the information available to the AHRRA,”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 50:

In page 83, line 5, to delete “subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015,”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Amendments Nos. 51 and 52 are related and will be discussed together.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 51:

In page 85, between lines 27 and 28, to insert the following:

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

This amendment arises out of Committee Stage, and I had a similar amendment down.

HR professionals raised concerns with me and they are seeking similar protection to that which is afforded to legal practitioners and consular service staff in the Bill. On Committee Stage, we discussed this and the Minister committed to asking his officials to look at my amendments. Did the departmental officials do that, did they review this proposal, and if so, what was the outcome?

David Cullinane (Waterford, Sinn Fein)
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These amendments provide beyond reasonable doubt that a medical professional will not be criminalised for offering genuine medical advice. There is a difference between amendment No. 51 and amendment No. 52. My amendment No. 52 permits the courts to exercise reasonable discretion in determining this, and I think that is a better course of action. I understand the logic of amendment No. 51 from Deputy Shortall but I think the most appropriate way to proceed on this issue is to permit the courts to exercise what my amendment describes as reasonable discretion.

Stephen Donnelly (Wicklow, Fianna Fail)
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The discussion was considered, as were the two similar amendments, and I thank both Deputies for tabling them. I understand that the intention is to seek a derogation for medical practitioners from the prohibition on knowingly providing a service that is to give effect or further effect to non-permitted international surrogacy. There are two points I want to make. First, section 89(5) already gives an exemption in regard to medical treatment for a pregnant woman, that is, there is a full exemption if the woman is pregnant, so we are talking only about advice ahead of pregnancy.

Second, the protections in place for the medical practitioner within the Bill as it stands are already very strong. A very high bar will have to be reached in order for a medical practitioner to have committed an offence and, specifically, it would have to be proven, which would be very difficult, that the individual had knowingly participated in a non-permitted surrogacy arrangement or a service they knew was directly related to a non-permitted surrogacy arrangement. A very broad protection is quite rightly in place for medical practitioners. The Bill before us provides that it will be only in the case of a woman who is not pregnant where advice is given to knowingly facilitate what would be a non-permitted international surrogacy or where a service is provided to knowingly facilitate a non-permitted international surrogacy. That is the only case where it will apply.

What we are doing here is similar to the requirement to follow the rules for intending parents, which we discussed earlier, as set out in the Bill and enforced by the authority, and this is simply saying that will apply to medical practitioners as well. Obviously, if a woman is pregnant, they can provide whatever advice they want, but they must not knowingly provide medical advice to facilitate an international surrogacy they know is not permitted. That is the only circumstance this will apply to. It is modest, but it is important to include it to provide some boundaries for the protections we want to be in place for permitted international surrogacies.

Róisín Shortall (Dublin North West, Social Democrats)
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There certainly seems to be an inconsistency here insofar as other professionals are not treated in the same way. Legal advice and consular advice are permitted but, arguably, medical advice is much more important. I just do not understand the reason for precluding it. I think it is an omission from the Bill and I will be pressing the amendment.

Emer Higgins (Dublin Mid West, Fine Gael)
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I know we are getting towards the end of the Bill, so, speaking on the amendment, I take this opportunity to thank the Minister, the Minister, Helen McEntee, and their officials for all the work they have put into legally recognising surrogacy in Ireland. I served as the Vice Chair of the Oireachtas Joint Committee on International Surrogacy and, under the stewardship of Deputy Whitmore and utilising the lived experience and legal expertise of my party colleague, Senator Mary Seery Kearney, with the help of campaigners, parents and expert witnesses who gave really powerful testimony-----

Róisín Shortall (Dublin North West, Social Democrats)
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Sorry, Chair, is this in order? We are speaking to amendments.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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It is in order to speak to the amendment. Is the Deputy speaking to the amendment?

Emer Higgins (Dublin Mid West, Fine Gael)
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Yes, I will get to the amendment in a moment. Utilising, as I said, the lived experience and the legal knowledge of colleagues across that committee, including Senator Mary Seery Kearney, with the help of campaigners and expert witnesses, who gave powerful testimony, we put together a very comprehensive report, which has informed the Bill, and from which many amendments that were tabled during this debate were discussed. I stood with so many of those witnesses and families on the plinth of Leinster House on the morning the report was launched. The raw emotion, the tears and the relief are something I will never forget, and I am really pleased they have helped us get to where we are today. These people, as the Minister knows, have fought for years, often before the birth of their deeply wanted and much-loved child, for legal recognition of their families' rights. While I absolutely welcome these much-needed and long-awaited changes-----

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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This is a very specific amendment, relating to Chapter 3 of the Bill. Will the Deputy please get to the amendment?

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the Acting Chairman. I will do so. While I absolutely welcome these much-needed and long-awaited changes, the legal underpinning of familial rights and their recognition, validation and realisation, I accept the legislation is not perfect, which is why I wanted to speak to the amendment. The Bill is not perfect - I do not think any legislation is - but in this instance, as the Minister noted in his response, time is of the essence to families, as it is to families who are beginning on their surrogacy journey. That is why we need to ensure the legislation will be kept under review and updated, as the amendment and other amendments have provided for, as science, technology, international agreements, best practice and modernisation develop, and I welcome the Minister's commitment to addressing certain issues, which we have talked about in the context of debates on recent amendments in particular, through robust and legal provisions in an amending Bill.

Róisín Shortall (Dublin North West, Social Democrats)
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This is complete abuse.

Emer Higgins (Dublin Mid West, Fine Gael)
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Is that okay, Deputy?

Stephen Donnelly (Wicklow, Fianna Fail)
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I understand why the amendments were tabled but I reiterate what I said. This is a very marginal protection and safeguard that provides that, if intending parents go to a medical practitioner and say they are intending to proceed with a non-permitted surrogacy and want his or her medical help in proceeding with that, the medical practitioner will not be able to do that. The intending parents will need to be compliant with the strictures we are putting in place. I have a lot of sympathy for the points being made but, again, we are legislating for something other countries have not done. We need to have safeguards in place, and what is in place for medical practitioners is very specific, relating to knowingly facilitating a non-permitted surrogacy.

Róisín Shortall (Dublin North West, Social Democrats)
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I think this prohibition is perfectly understandable in a case before anything happens, but after the event, a medical practitioner is required to provide medical care where he or she is asked for that.

Stephen Donnelly (Wicklow, Fianna Fail)
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That is fully covered. There is a full exemption once a woman becomes pregnant. It will only be beforehand that this will apply.

Róisín Shortall (Dublin North West, Social Democrats)
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They will not be allowed, therefore, to provide any medical advice at all.

Stephen Donnelly (Wicklow, Fianna Fail)
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To a pregnant woman, there is a total exemption. A medical practitioner can provide any advice in that case.

Róisín Shortall (Dublin North West, Social Democrats)
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Beforehand, however, if they are entering into an agreement that may not be a legal agreement-----

Stephen Donnelly (Wicklow, Fianna Fail)
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That will apply only if the medical practitioner is told.

If the intending parents say that they are about to do something which is not permitted under law and that they want the practitioner to facilitate that with them-----

Róisín Shortall (Dublin North West, Social Democrats)
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Will the Minister give an assurance that if a person is intending to proceed with something that is not in keeping with the legislation, there are no circumstances under which that person could be prosecuted, for example?

Stephen Donnelly (Wicklow, Fianna Fail)
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The only situation where it is an offence is-----

Róisín Shortall (Dublin North West, Social Democrats)
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Where they knowingly-----

Stephen Donnelly (Wicklow, Fianna Fail)
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-----where they knowingly do it.

Róisín Shortall (Dublin North West, Social Democrats)
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Okay. Thank you.

David Cullinane (Waterford, Sinn Fein)
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I move amendment No. 52:

In page 85, between lines 27 and 28, to insert the following:

“(c) The giving by a medical practitioner of genuine medical advice.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 53:

In page 86, to delete lines 2 to 7 and substitute the following: “(i) the specified form of a surrogacy agreement (SJ) shall require, in the case of two intending parents, each of them to indicate that he or she understands that, should the agreement be approved under this section but he or she dies before the embryo transfer concerned has been effected, such approval will be treated as revoked from and including the date of death, and”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 54:

In page 87, between lines 17 and 18, to insert the following: “(7) In the case of two intending parents, should a surrogacy agreement (SJ) be approved under this section but an intending parent dies before the embryo transfer concerned has been effected, such approval shall, by virtue of this subsection, be treated as revoked from and including the date of death, and the other provisions of this Act shall be construed accordingly.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 55:

In page 87, lines 26 and 27, to delete “a registered medical practitioner” and substitute “an appropriate medical specialist”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 56:

In page 87, line 29, to delete “a registered medical practitioner” and substitute “such specialist”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 57:

In page 87, line 33, to delete “pregnancy” and substitute “clinical pregnancy”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 58:

In page 87, between lines 33 and 34, to insert the following: “(b) In paragraph (a)—

“clinical pregnancy” means a pregnancy not less than six weeks in gestation and in respect of which there is evidence of a gestational sac having been identified through an ultrasound scan;”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 59:

In page 87, line 34, to delete “(b) In paragraph (a),”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 60:

In page 90, line 8, after “any” to insert “net”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 61:

In page 94, to delete lines 14 to 22.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 62:

In page 94, line 24, to delete “(8)” and substitute “(7)”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 63:

In page 94, line 36, after “parents” to insert “or one of them”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 64:

In page 96, lines 2 to 5, to delete all words from and including “child” in line 2 down to and including line 5 and substitute the following: “international surrogacy agreement was a permitted international surrogacy agreement if it is satisfied that the best interests of the child justify such a waiver.”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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If amendment No. 65 is agreed, amendment No. 66 cannot be moved. Amendment No. 65 was already discussed with amendment No. 45.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 65:

In page 96, to delete lines 6 to 9 and substitute the following: “(b) The court may waive a requirement under subsection (1) for consent from an intending parent, in the case of two intending parents, if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her,

or

(iii) lacks the capacity to make a decision in that regard.

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

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find her, or

(iii) lacks the capacity to make a decision in that regard.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 67:

In page 107, line 17, after “or” to insert “a”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 68:

In page 107, line 27, after “or” to insert “a”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 69:

In page 107, lines 34 and 35, to delete “subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015,”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 70:

In page 120, line 2, to delete “of” and substitute “for”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 71:

In page 123, lines 10 and 11, to delete “the generality of the Assisted Decision-Making (Capacity) Act 2015 or”.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Amendments Nos. 72 and 77 are related and may be discussed together.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 72:

In page 156, to delete line 19.

I have had contact from a couple of different groups including the LGBT+ Parenting Alliance, which has particularly drawn my attention to this. The Department has said the reason the High Court has been given jurisdiction is because it believes a transfer of motherhood can only take place there. We discussed this issue in considerable detail but it was not satisfactorily resolved. Much of the Bill is built on the premise that the Supreme Court upheld the maxim that the mother is always certain. This is something that Dr. Clare O'Connor has repeatedly and very persuasively argued is a misconception.

We are now talking about a splitting of motherhood, not the historical understanding of a birth mother who is both the gestational and genetic link to the child. It is a different situation now with the splitting of parenthood. The Supreme Court case in question revolved around the topic of birth registration. It did not deal with the parentage which is an entirely separate matter. Even though it is quoted as being relevant to the whole question of parentage, it was in fact about birth registration. Furthermore, both birth registration and parentage in the context of surrogacy should have been ironed out by the Legislature. It is not for a court to offer a prescriptive framework which takes into account all of the relevant factors in assisted human reproduction. Despite raising this issue on Committee Stage and providing the Minister with legal advice, I have not received a satisfactory response.

Returning to the question of court jurisdiction, I believe the specific reference to the High Court should be removed to allow for the Circuit Court to hear parental order applications. The High Court is based in Dublin and its fees are much higher than those in the Circuit Court. The Circuit Court would be more accessible and appropriate in the majority of cases. We discussed this issue at the briefing and on Committee Stage and I do not think anybody was in a position to tell us about the likely delay in getting into the High Court. Taking a case to the High Court is a huge undertaking, as is meeting the fees involved. For that reason, and because of the question marks about the maxim, it would seem to make sense if most of these parental order applications could be heard in the Circuit Court. There is access to the Circuit Court right around the country. It is much cheaper for people and can be accessed more speedily. For that reason I do not believe that in the vast majority of cases there is any need for the applications to go to the High Court. Will consideration be given to hearing most of the cases in the Circuit Court?

Stephen Donnelly (Wicklow, Fianna Fail)
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I thank Deputy Shortall for the proposed amendment. I do not have a policy view on this at all. We want to do what is legally robust. We want to be cognisant that these proceedings can come at great expense to parents and at great inconvenience to parents who have already been through so much to have a surrogacy in the first place. We have looked at this up and down. We have gone back to the Attorney General. We have asked and probed. The very clear and consistent advice we have received from the Office of the Attorney General is that because the constitutional right is with the birth mother and we are severing that constitutional link, those who want to do this will have to go to the High Court. That is it. That is the only reason we are doing it like this. It has become established practice in other cases. For example, when a biological father is seeking parental recognition, he goes to the High Court. There would be a question under donor-assisted human reproduction whether they could even go to the District Court and they are using the High Court as well. The reason here is based purely on legal advice from the Attorney General.

I am conscious that going to the High Court is a very expensive thing for parents, or for anybody, to do. We will not have a situation where any parent, parents or children cannot go to the High Court for financial reasons. I want to make that very clear. We have not worked out a scheme but we will work out a scheme. It will involve a very modest amount of money in the grand scheme of things. No child or parent will be left in a situation where they cannot, as soon as the courts can facilitate it, access those courts with whatever legal advice or representation they need. Whether that is the State paying in situations where parents cannot afford it or through some subsidy, we will work that through. No child or parent will be left outside on a cost basis of going to the courts.

Róisín Shortall (Dublin North West, Social Democrats)
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Does the Minister not accept the point I have made that there is now a splitting of motherhood or the concept of motherhood? For other purposes, it was assumed that the birth mother was the genetic and gestational mother. That is no longer the case in a situation of surrogacy. There is a distinction between the genetic mother and the gestational mother. The constitutional provision to which the Minister referred no longer applies and it is no longer necessary for such cases to be taken to the High Court. They can be dealt with perfectly adequately in the Circuit Court.

The Minister said today for the first time that cost will not be an issue. In that respect, that is a welcome announcement. However, there are other concerns. There is the whole question of access. For anybody who lives outside of Dublin, it is a considerable inconvenience and expense to get into the High Court. That is unnecessary. There is the question of access for individuals going to the High Court, or who have been forced to go to the High Court, as well as the other issue of there being a long waiting list to get into the High Court.

It seems like an unnecessary complexity is being added to this issue. For that reason, it would seem to make practical and all kinds of common sense to hear many of those cases in the Circuit Court. I do not understand why that is not happening. The only explanation seems to be the misconception about the constitutional provision that a gestational mother is assumed to be the genetic mother, which is not the case in relation to surrogacy.

Emer Higgins (Dublin Mid West, Fine Gael)
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It would make logistical sense if this could be dealt with in the District Court. This was something we discussed at length in the committee, and it came up again and again from an access and accessibility perspective. I welcome what the Deputy said about cost because while my preference is that this be heard in the District Court, my higher and ultimate preference is that this is done in a legally robust way that does not allow for challenges or getting into legal quagmires and is clear-cut. If we have to hear such cases in the High Court for that reason, then I accept that.

Cost is the prohibitive element for families. I welcome what the Minister has said. I believe he said that we will not have a situation where people will be held back from going to the High Court for financial reasons. I hugely welcome that because it is an important signal to families here today. In general, what we have seen today are important signals that show that Ireland is a progressive and inclusive country and the Government is a compassionate guarantor of familial rights. It shows parents and children in the Gallery and at home that they are equal and get due recognition. I thank the Minister and I appreciate where the Deputy is coming from in this amendment.

Stephen Donnelly (Wicklow, Fianna Fail)
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I have dealt with the issue of cost several times. That has been my position for quite some time. I am not a constitutional lawyer, and nor is Deputy Shortall. We are both getting legal advice from lawyers. I take my advice from the Attorney General, and I must do that. I fully respect Deputy Shortall's position and no doubt she is getting expert legal advice on this. I have to take my advice from the Attorney General.

The Office of the Attorney General has been unambiguously clear about this. We can have no risk or challenge. Imagine we went with this amendment and the Attorney General was right. Some disaffected surrogate or partner could challenge the law and win. Where would we be? If that happened, it would put at risk every parental order that has been granted by the District Court. That is ultimately where we are at.

I would much prefer if the Attorney General said these cases could be dealt with in the Circuit Court, but the office has not said that. It has said we are severing a constitutional link, notwithstanding the points made by Deputy Shortall with which the Attorney General does not agree. We cannot have a situation whereby we go to the District Court and there is a successful challenge to the High Court and all of the parental orders fall. We have to go to the High Court. That is the advice from the Attorney General and that is what we are going to do. I and this Government will make sure that there is no question of any child or parent not being able to access the High Court on financial grounds.

Róisín Shortall (Dublin North West, Social Democrats)
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I am withdrawing the amendment. This is another gun to the head situation, it seems.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 73:

In page 158, line 21, after “parents” to insert “or one of them”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 74:

In page 160, lines 9 and 10, to delete “subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, ”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 75:

In page 160, to delete lines 13 to 21 and substitute the following: “(2) (a) The Court may waive a requirement under subsection (1) for consent from an intending parent, in the case of two intending parents, if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her,

or

(iii) lacks the capacity to make a decision in that regard.

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

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find her, or

(iii) lacks the capacity to make a decision in that regard.

(c) The Court may waive a requirement under subsection (1) for consent from the relevant child if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her,

or

(iii) lacks the capacity to make a decision in that regard.”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 77:

In page 164, to delete line 17.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 78:

In page 166, line 22, after “parents” to insert “or one of them”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 79:

In page 168, lines 9 and 10, to delete “subject to the provisions of the Assisted Decision-Making (Capacity) Act 2015, ”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 80:

In page 168, lines 13 to 16, to delete all words from and including “that” in line 13 down to and including “waiver” in line 16 and substitute “if it is satisfied that the best interests of the child justify such a waiver”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 81:

In page 168, to delete lines 17 to 25 and substitute the following:

“(b) The Court may waive a requirement under subsection (1) for consent from an intending parent, in the case of two intending parents, if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her,

or

(iii) lacks the capacity to make a decision in that regard.

(c) The Court may waive a requirement under subsection (1) for consent from the surrogate mother if she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find her, or

(iii) lacks the capacity to make a decision in that regard.

(d) The Court may waive a requirement under subsection (1) for consent from the relevant child if he or she—

(i) is deceased,

(ii) cannot be located after reasonable efforts have been made to find him or her,

or

(iii) lacks the capacity to make a decision in that regard.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 83:

In page 177, line 27, to delete the semicolon after “(eeeeee)” and substitute a colon.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 84:

In page 181, between lines 5 and 6, to insert the following: “Insertion of section 4A into Act of 2015

232. The Act of 2015 is amended by the insertion of the following section after section 4:

“Best interests of the child

4A. Where, in any proceedings before any court under this Part, the court, in determining whether to make an order, shall regard the best interests of the child as the paramount consideration.”.”.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 85:

In page 181, between lines 7 and 8, to insert the following: “(a) in section 19(3), by the deletion of paragraphs (b) and (c) and the substitution of the following:

“(b) medical expenses,

(c) any legal or counselling costs, and

(d) any net loss of income,”,”.

Róisín Shortall (Dublin North West, Social Democrats)
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I move amendment No. 86:

In page 181, line 12, to delete “section” and substitute “paragraph”.

This amendment would ensure that all non-clinical conceptions up to this paragraph coming into operation would be covered by the legislation, as opposed to just those up to 4 May 2020, the date on which the section of the Child and Family Relationships Act was commenced. We discussed this on Committee Stage and the Minister said that a very clear framework was put in place since May 2020 and that people must comply with it. I find this explanation very difficult to square with what the Minister said was his initial view, which was that non-clinical conceptions should have been provided for in this legislation. I accept the explanation given on Committee Stage as to why that could not be provided for but I still cannot understand why, at the very least, retrospective recognition cannot be extended up to the point at which this paragraph comes into operation. It seems very harsh, especially given that we are to believe that the Minister was originally in favour of providing for all non-clinical conceptions. That is why I would still argue that at the very least, a further amnesty should be applied via this retrospective amendment.

Stephen Donnelly (Wicklow, Fianna Fail)
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I thank Deputy Shortall for the proposed amendment, which is the same as one she tabled on Committee Stage. We have had a good debate on this. The purpose of the amendment, as I understand it, is to switch the cut-off point before which less onerous retrospective provisions apply to certain donor-assisted human reproduction procedures from May 2020 to a later date into the future. In doing so, the amendment would allow for a declaration of parentage arising from donor-assisted human reproduction procedures which took place after commencement of the 2015 Act but did not meet the requirements set out in that Act. In addition to procedures which took place in a non-clinical setting and in clinics outside Ireland, this would include procedures where the identity rights of donor-conceived children are not protected. This would be up to the point that the intended new provisions of the 2015 Act are commenced. Currently, these provisions only apply to the date of commencement of the 2015 Act which was 4 May 2020, after which there was a clear regulatory framework in place for assigning parentage arising from donor-assisted human reproduction. Therefore, I do not believe this amendment should be incorporated into the Bill. It would undermine the provisions in the 2015 Act which were put in place primarily to protect the identity rights of donor-conceived children, whilst also ensuring certainty as regards parentage from the point of a donor-assisted human reproduction procedures, as well as the clinical safety of such procedures.

At the same time, it should be noted that while the Children and Family Relationships Act was enacted in 2015, the provisions regarding retrospective declarations of parentage were not commenced until May 2020. Amendments which were agreed on Committee Stage of this Bill will extend the circumstances under which a retrospective declaration of parentage can be granted for the time up until the date of commencement of the Bill. On Committee Stage, we already created a very significant and important time where parentage can and should be recognised. It is only for that period after the commencement of those provisions. We made important progress on Committee Stage in going back to 2015 and we have the balance right now, post-Committee Stage.

Róisín Shortall (Dublin North West, Social Democrats)
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I accept what the Minister is saying and will withdraw my amendment.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 87:

In page 182, to delete line 33.

Stephen Donnelly (Wicklow, Fianna Fail)
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I move amendment No. 88:

In page 187, to delete lines 20 and 21.

David Cullinane (Waterford, Sinn Fein)
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I just want to make a number of remarks because this is a groundbreaking Bill. We have been through a very lengthy process and I genuinely do not believe that this Bill has been rushed or that we have done anything in haste. We have done our job very diligently. There was a lot of pre-legislative scrutiny. In fact, there was an Oireachtas committee that did a huge amount of work on this and I want to commend those involved, including my own colleague, Deputy Funchion, and the many others across all of the political parties and groupings who played their part in that work.

A lot of people are waiting for this Bill to pass because retrospective parental recognition is so important to them and they want to have that for their beautiful children, some of whom are in the Gallery this evening. I am sure others are watching online. Hopefully we can get this Bill passed and enacted as quickly as possible, while still doing our job, which is what people want us to do.

The Bill does an awful lot. It is a very lengthy Bill which deals with a lot of issues apart from some of those we discussed today. Those other important issues with which the Bill deals should not be forgotten. Obviously, one of the most important parts of the Bill is retrospective recognition but equally important is the putting in place of a new process for international surrogacy. That was not an easy undertaking. We are talking about something does not exist anywhere else in the world and we had to start from scratch. I do not envy the people who were involved. As I said earlier, on a number of occasions I have commended the Minister's officials and I want to do so again. It was a really powerful piece of work by everybody involved. I acknowledge the officials who are here today who did a huge amount of work on this. It is a phenomenal piece of legislation. The officials engaged very constructively with the Oireachtas health committee. They made themselves available to answer questions and address any concerns that we had. They went above and beyond the call of duty and I really thank them for that.

Even though there is an election coming up, I will also thank the Minister for his work and for bringing forward this legislation. Genuinely, it is a groundbreaking piece of legislation and is a credit to everyone who was involved in the process. We can all be immensely proud of what we have achieved. I really hope that this Bill is enacted as quickly as possible and that the parallel Bill to which the Minister referred will then come. I genuinely believe that was the best approach and I commend the Minister on taking it. Obviously, I look forward to that Bill being enacted at some point as well. This is a really big day for those who are waiting for this Bill to pass and again, I commend all of those involved.

Róisín Shortall (Dublin North West, Social Democrats)
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The passage of this Bill through the Dáil today is a really important landmark. It is undoubtedly very warmly welcomed by many of the campaigners seeking recognition of their parent-child relationships. Huge credit goes to those campaigners for their tireless and compelling work making the case so strongly to legislators that this issue should not slide down or off the political agenda. It is also important to acknowledge the work done by the Minister and his officials, particularly between Second and Committee Stages but also between Committee and Report Stages. It was slow going at times. It was quite complex and turgid at times but everybody stuck with it and the Bill is much better for that. Most of the aspects were fully teased out and in many respects the Bill was greatly strengthened because of that whole process.

Trying to legislate in this area has certainly raised some difficult legal and ethical issues and I want to thank the Minister and his officials for their willingness to engage on these thorny issues throughout the legislative process. Our objective was a shared one, which was to provide legal certainty for those many families, parents and children, who have been living through a very difficult period when there was such uncertainty surrounding their key relationships. Today is a very positive day in that regard.

This issue has been around for a long time.

It is 24 years since the Commission on Assisted Human Reproduction was established and 19 years since its report was published. My preference would have been for us to deal with all the issues in this legislation. That turned out not to be possible. I accept the pressures with regard to other legislation which was also important and took up time.

I say a sincere thank you to the Minister and his officials for all the work involved in this. There are a great many families who today will be very much rejoicing at us getting to this point today. There is another bit to go but I hope it will be dealt with with speed. I thank all the campaigners who have done so much to get us to this point today and I hope we will get to the final hurdle before too long.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the Minister for Health, the Minister. Deputy McEntee, and the officials in both their Departments who worked on this, the Office of the Attorney General, the Oireachtas health committee, my fellow members of the Joint Committee on International Surrogacy, which was a special committee put in place to look at this, especially its Chair, Deputy Whitmore, and my colleague, Senator Mary Seery Kearney. Most important, I thank the families, campaigners and groups who kept this on the news agenda, the political agenda and the legislative agenda. To do so they had to share really personal stories, personal parts of their lives, and their lived experience, and they should not have had to do that. However, because they did, after the passage of this Bill, Ireland will be a better and more inclusive place. This Bill is a recognition not only of their familial rights, but of all their hard work and dedication to this cause. I thank them for that.

Stephen Donnelly (Wicklow, Fianna Fail)
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First, I welcome our guests to the Gallery. Hello again.

Today is a good day for healthcare and people in Ireland. I came at speed to the Chamber from a launch of the new beds plan. We all agree it has been needed. Today we launched a plan for an additional 3,500 hospital beds. Everyone will welcome that over the next seven years. We have 1,200 beds open, another 440 under construction and we now have thousands more coming next year and the following years. It will make a big difference and it will be on a balanced regional basis. I am delighted to have come from that into the Chamber today to work with colleagues to get the assisted human reproduction Bill through Report and Final Stages in the Dáil.

I will thank and acknowledge a few people. First, are my Oireachtas colleagues. In the committee we spent a long time on this. As was mentioned, there was also a Joint Committee on International Surrogacy which produced a thoughtful and balanced report. I acknowledge the work across both Houses of the Oireachtas in supporting this Bill. I hope, and I think it has been acknowledged already, that I have taken as collaborative an approach as I can. Certainly, I know from when I was trying to get amendments to legislation, there is a lot more in this Bill than I managed to get across the line in many years previously. I am really trying to take a very open and collaborative approach to this, which is why so many of the amendments recognised Opposition amendments from Committee Stage.

I thank the advocacy groups for everything they have done and everything they continue to do. They have been central to this. Essentially, everything we are doing is in collaboration and discussion with them. We had many rounds of discussions while the Bill was being drafted and while we were putting the Committee and Report Stage amendments together. It has been a collaborative process. Not all the different advocacy groups or individuals in those groups will be happy with everything in the Bill. I acknowledge that. It has not been possible to do everything that everyone wanted. All the requests have come from one place, which is a desire for retrospective parentage, that is parentage for children people already have, or a desire to ensure people have the best possible chance of becoming a parent in the future. We have significantly amended and changed the Bill and included requests that came from civil society and different groups. As has been said, the Bill and the law will be stronger, more compassionate and more inclusive for that. I thank the advocacy groups for all their time.

I have to thank my officials. They really have put in a lot of work. I have put them under a lot of pressure. There are Bills that are a lot less complex than this one that are about halfway through drafting. We have gone from a standing start on international surrogacy to having almost a final Bill, the first of its kind anywhere in the world, in a short period. I have applied a lot of pressure, but the officials in the Department, the Office of the Attorney General and the other Departments have really worked very hard. My officials who are here with me today have put a huge amount of work into it. They are hugely invested in it. They have been engaging directly with colleagues here and with the advocacy groups and they are committed to making this happen. I thank them for that. They will be absolutely scarlet with that kind of focus.

I will lay out the process from here so that colleagues and intending parents will be aware of it. A few weeks ago, I was sitting with my officials, going through all the outstanding amendments we wanted to make. They were mainly in response to what advocacy groups and the Oireachtas were looking to do. I was concerned that, given the time required to go through all Stages in the House, if we were to wait for all the amendments, which needed to be in today, we would be at serious risk of the Bill not passing before the Dáil rises. As I said earlier, there is no way I could stand over that. Therefore, I spoke to the Ministers, Deputies McEntee and O'Gorman, and the Attorney General. We met and went through all the outstanding issues and we essentially had two options. Ultimately, they all agreed that we would not be ready given the complexity of some of the amendments and some of the requests we were trying to facilitate. We had a choice. We could have brought it in this Bill but we would have had to wait until September or October, probably even to get to today and certainly to the Seanad stage, which I did not want to do. Therefore, we have proceeded and we have taken a relatively small number of complex amendments, some of which were discussed today and some that were not, around expanding citizenship and parentage for situations where the parents are abroad. It is about expanding and making it more inclusive. We are proceeding with this and I am told we will have amending legislation ready to go as soon as the Dáil comes back into session. I hope it will go through Second and all the Stages quickly. We have discussed all the issues. That is how we have decided to do it.

The process, now that the Bill has been passed by the Dáil, is that I hope it will be in the Seanad on 10 June. We have to go through all Stages in the Seanad but we hope to do so quickly. My hope is that we do not need to amend the Bill in the Seanad, because if we do, we have to come back to the Dáil and that risks it not getting through before the Dáil rises. Therefore, my hope is that we will not be amending the Bill in the Seanad, partly for that reason but also partly because we have engaged closely with the Senators who are invested in this and I believe their various concerns and ideas have already been incorporated. I hope on 10 June we will get into the Seanad and I hope in one, two or three weeks we will get back for Committee and Report Stage, or as quickly as possible. There are hundreds, and some who are involved tell me thousands, of families in Ireland today where the mums and dads of children do not have recognition as parents. This is the first group of people who we must do right by through this legislation. Yes, we are putting in place future international surrogacy and expansion of donor-assisted human reproduction.

For example, because of this Bill, we will be able to expand donor-assisted IVF to same-sex couples which was not possible before. We are investing a lot of our time in the surrogacy parts of this but the donor-assisted human reproduction, which was the original Bill, means that really important benefits will accrue to individuals and couples desperate to have a child and it fits in very well with the publicly-funded IVF. The intention is that we will get this through All Stages in Seanad and get it straight up to the President. Hopefully, he will sign it. I will then very quickly commence the sections for the retrospective element. My officials and the Department of Justice officials have been engaged with the Courts Service now for some time. Ultimately the Courts Service will determine when the parents go into court. There are various things that they need to put in place but we are having the conversation with them now. We have been having it for some time. What we are saying is that from the Government’s and my perspective - in fact, I think that of all of us - parents can walk into that court for that important day for them as quickly as possible, and I am hoping that it is this summer. If I commence these sections at the end of June or the start of July, depending on when the President signs it, the hope would be that the Courts Service would be able to facilitate this quickly. We are working with it to see what can be done. We are, to some extent, as with any legislation that is commenced, reliant on the Court Services but our intention is that as soon as possible after commencement these mums, dads, boys, girls, older children and, in some cases, adult children can go into the High Court and get what is rightfully theirs which is full parental recognition. That is where it stands.

I thank colleagues again and once again welcome our visitors.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Cuirfear an Bille chuig an Seanad.