Former minister for justice Alan Shatter has said the Government's decision to remove surrogacy from the Children and Family Relationships Bill is a "breach of faith" with the Supreme Court.
Mr Shatter pointed out that, when it heard a landmark surrogacy case last year, the Supreme Court was told by lawyers for the State that the Government had just days earlier published draft laws on surrogacy and planned to enact them as part of the Children and Family Relationships Bill.
The court sided with the State in that case but its judgments were sharply critical of the absence of any law on surrogacy.
“I’m concerned that what is happening now is a breach of faith with the Supreme Court,” Mr Shatter said. “It’s quite extraordinary that . . . between the time they heard the appeal and judgment was delivered, the government changed its mind.”
Frances Fitzgerald, who replaced Mr Shatter as minister last May, removed all surrogacy provisions from the Bill, saying more policy work and consultation was needed. The issue is due to be included in a separate Department of Health Bill on assisted human reproduction, but Mr Shatter said that could not be enacted in the lifetime of the current Government.
He believed the decision to drop surrogacy stemmed from "a residual concern that it would generate a level of controversy that it hadn't generated up to that point." He said a public consultation on his proposals, which included a ban on commercial surrogacy, had resulted in a broad welcome for the proposals. "The timeframe is gone. So we're into the lifetime of the next government, and there's no guarantee what the composition of that government will be or the extent to which this issue will be prioritised," Mr Shatter said in an interview with The Irish Times.
“So my concern is that the can has been kicked down the road. We don’t know now will there be legislation enacted, in the best interest of children, to in law give clarity to who their real parents are, and to provide clear legal rules as to the custody and guardianship of those children.”
Unnecessarily complex
Mr Shatter, a family law specialist, said the Bill, which went to second stage in the
Oireachtas
this week, was “an exciting piece of legislation” and he was “delighted” by many of its provisions. He said he had “no theological or emotional attachment” to the legislation as he drafted it and always expected it to be amended or fine-tuned.
However, he said the latest version of the Bill meant the State was taking “three steps forward and one step backwards.” He said some of the areas relating to guardianship, custody and access, including the definitions of these terms, had “gone AWOL”, while other sections of the draft law had been made unnecessarily complex.
“Whether you’re talking about the surrogacy issue or the area of assisted reproduction, the ultimate focus that I’m concerned about is the best interest of children, recognising the reality of the complexity of family lives and the circumstances in which children are conceived. Not leaving gaps was hugely important.”
Mr Shatter and Ms Fitzgerald have also clashed over her decision to include in the Bill a ban on the anonymous donation of genetic material. Ms Fitzgerald points out that this stance is supported by the Ombudsman for Children and the Oireachtas justice committee and says it will bring Ireland into line with international best practice.
For his part, Mr Shatter argues that the measure could bring donor-assisted human reproduction in Ireland to an end. He told Ms Fitzgerald at committee stage that her proposal would have the “unintended consequence” of forcing couples who have difficulties conceiving to leave the State for treatment, bringing about “another Irish solution to an Irish problem.”
In the interview, Mr Shatter said it was clear there had been inadequate consultation with fertility clinics and the medical profession on the proposed ban and pointed out that representatives of the clinics had expressed concerns about the idea. “You can’t, on a medical issue, have the advice of rights bodies and not engage with those who are working at the coalface in the area of reproductive medicine,” he said.
Do fertility clinics not have a financial self-interest in opposing the plan? “Of course they do,” Mr Shatter said, but added: “I’m not going to assume that doctors who are helping infertile couples, or couples who have difficulties in conceiving, are villains.”
“There have been thousands of children born over the last 30 years through assisted reproduction with the assistance of some extraordinary medics who have been at the frontier of reproductive medicine.”
Delay
“We don’t need to create another group of children who are outside legal provision and whose parentage isn’t adequately recognised because they have been conceived by Irish couples attending clinics abroad using anonymous donations.”
Mr Shatter added that the assisted reproduction elements should have been dealt with in the separate Bill being drafted by the Department of Health.
He also criticised the delay in enacting the Bill. Because it was being finalised as the same-sex marriage referendum approached, he said, some of those who would be “genuinely concerned” about the policy options taken on surrogacy and assisted reproduction “feel they need to stay silent for fear that commenting on it could be seen in some way as damaging to the prospects of a successful referendum.”
At the same time, the proximity to the referendum had allowed “some groups who in any case would oppose marriage equality to use some provisions in the legislation to confuse the debate.”
The two were entirely separate, he said. “I am passionately in favour of a successful outcome to the marriage equality referendum. I don’t believe we should discriminate against people because of their sexual orientation. We should recognise our common humanity, and I really want to see that referendum succeed.”
