A draft Bill to provide a legal architecture to a wide range of family structures will not “downgrade or devalue” the traditional marital family but ensure all children are treated equally, the Minister for Justice has said.
“We cannot afford to regain outmoded legislation which treats some children less favourably than others,” Alan Shatter said at a seminar at which he outlined proposals contained in the Children and Family Relationship Bill.
Mr Shatter said “huge gaps and anomalies” existed in our current legal system for children growing up in families with lone parents, cohabiting couples and civil partnerships, and in cases where children were born following surrogacy and assisted human reproduction.
Mr Shatter set out the “broad range” of proposals covered under the draft Bill including those which, if enacted, would mean:
- civil partners could jointly adopt children
- the step parent, civil partner or cohabitant partner of a child’s parent could be liable for maintenance following a family break-up
- an unmarried father would be entitled to automatic guardianship of his child in situations where he has cohabited with the mother for 12 months before the child’s birth or, where cohabitation has ended, no later than 10 months before the child is born
- in cases of surrogacy the birth mother would be considered the mother of the child and her consent would be required for the transfer of her parental responsibilities to the commissioning parent (one of who must be genetically linked to the child)
- while “altruistic” surrogacy would be permitted, commercial surrogacy would be prohibited
- a parent could appoint a “substitute guardian” in cases of temporary or permanent incapacitation
Welcoming the draft Bill, chief executive of the Children’s Rights Alliance Tanya Ward said Irish law had “not moved with the times” as regards the wide range of family forms that now exist, pointing out that the 2011 census revealed that over a third of Irish children were born outside married families.
She said that, if enacted, the proposed legislation would provide mechanisms to address the day-to-day issues faced by, for example, step parents who cannot currently give medical consent or consent for school trips, and would also give legal clarity around access and maintenance in the case of family breakdowns.
However she said a gap existed around identity rights of children in cases of of assisted reproduction and surrogacy:
“We are concerned at the moment that the Bill doesn’t allow for right to identity of a child,” she said adding that this included “knowing who your parents are” even if that person was a sperm or egg donor which “would mean prohibiting anonymous donation”.
Former Supreme Court judge Catherine McGuinness, who chaired the seminar, described the draft legislation as a “radical new Bill” which would reflect the family as it “really exists in Ireland”.
Dr Geoffrey Shannon, the Government’s special rapporteur on child protection, said the Bill was a “very solid piece of legislation” and one which was “truly historic”.
He said that, up to now the law had “treated as invisible and discriminated against children who live in many new family forms”.
However, he suggested a number of changes to the Bill including that reconsideration be given to a proposal which would require a child over the age to 12 to consent to guardianship which, he said, might impose a burden.