Oireachtas Committee issues report on proposed family law reform

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The Oireachtas Joint Committee on Justice, Equality and Defence wants the Government's proposed Children and Family Relationships Bill to be made even more permissive than it already is.

A report sent to the Minister for Justice, Frances Fitzgerald, by the Committee wants the law to permit posthumous conception (using the sperm of a dead person), ‘traditional surrogacy’ (meaning a mother gives birth to her genetic child for another person), and it also in effect gives the green light to commercial surrogacy which is when a woman is paid for the use of her womb.frances.jpg

The report follows a consultation with a number of stakeholders including children's charities, medical and legal organisations and advocacy groups.

The only tightening up of the legislation recommended by the committee is that “it should be considered” whether the Bill could be amended to include some provision “concerning the right of a child to access information concerning their genetic identity”, that is to information about their sperm donor father or egg donor mother.

As it stands, the Bill creates an entitlement for single men, single women, cohabiting couples and same-sex couples to use Assisted Human Reproduction (AHR) services to have children. It dispenses with the need for a mother and a father, minimises the importance of marriage and minimises the importance of the natural ties.

The report says that “the proposed legislation was strongly welcomed by most stakeholders, and described by most as being progressive in seeking to ensure greater protection for children, and greater recognition for different forms of parentage.”

In respect of couples and individuals who use commercial surrogates in countries like India, it says that “no sanction should be imposed for breach of provisions in the Bill on the parents that would be against the interests of the child; and in particular, children should not be denied a legal identity because of some breach of the relevant provisions relating to surrogacy arrangements by their parents or prospective parents.”

The Bill itself prohibits commercial surrogacy although the Department of Justice has told The Iona Institute that in practice people who use overseas commercial surrogacy services to have children can still apply to court to be recognised as legal parents of the child. Most European countries prohibit surrogacy outright.

The report also quotes Barnardos, the Child Law Clinic, and the Institute of Obstetricians and Gynaecologists, who in their submissions all argued for the inclusion of traditional surrogacy – whereby the birth mother provides her own eggs and thus is also the child's genetic mother – in the legislation.

The General scheme to the Bill had previously stated that “this exclusion is intended as a human rights measure to prevent a surrogate mother from being coerced into selling her own child and also that the effect of allowing traditional surrogacy would be to permit the woman to 'contract out' of her parental responsibility for a child which is hers both by genetics and by birth.

Dr. Deirdre Madden of UCC in her submission, argued that excluding traditional surrogacy is not in the best interests of the child in circumstances where a surrogate mother might be willing to use her own eggs, as it necessitates the introduction of a third party. Dr. Madden said:

“The argument that allowing traditional surrogacy would allow mothers to ‘contract out’ of their parental responsibility “displays a negative bias against surrogacy which is not appropriate or justified” and does not hold up. Studies of surrogate mothers commonly show that surrogates do not consider the children they bear to be theirs and therefore they are not ‘contracting out’ of responsibility for their children.”

Furthermore Dr. Madden criticised the inclusion of the term ‘selling’ in the policy rationale which she argued was negative, emotive and inappropriate.

Family and Life, the only group to question the overall aims of the general scheme, were mentioned twice in the report, and none of their recommendations were adopted by the committee.

In his introduction to the report, the chair of the Justice Committee, David Stanton TD, said that “it should be be borne in mind” that the report has no legal force, and that the Heads of Bill will require more work before they are published. He also thanked all those who contributed to the committee's hearings.

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