Adoption Amendment Bill 2009 -Committee Stage Resumed - 4th March 2009
Senator David Norris:
It has been 16 years since Ireland signed the Hague Convention. That is quite a long time gap. That may explain one point which I find interesting. The Minister of State spoke persuasively about the power and significance of the English version. Then there was the matter of the French version. I wonder is there an Irish version of the Hague Convention. This would predate the position where, as a result of Government advocacy, the Irish language became one of the necessary languages of the European Community and a horde of translators were employed.
The reason I ask is because the Minister of State also raised the question of the constitutional provisions. Of course, as he will be aware only too well as a fine lawyer, if there is a conflict between the English version of the Constitution and the Irish version, the Irish version prevails.
This is an aspect of the matter. Senator White was worrying about French but we do not even know whether there is a version of the Hague Convention in our own language. If there is, presumably, by analogy with the constitutional position, it would be the Irish version, not either the English or the French version, that would prevail in law. It is an academic point but in a way the entire debate on this Stage is academic.
Senator Alex White:
I may be responsible for taking us down the road of that perhaps not significantly helpful analogy as between the Irish and English languages if an issue arises in terms of what the Constitution means. The point we are making in this amendment is a somewhat narrower one, that if one refers to the Hague Convention in the interpretation section of the Bill, it states:
“Hague Convention” means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993, the text [I suggest, “in the English language”] of which, subjection to subsection (3), is set out for convenience...
It is merely for the sake of completeness. Schedule 2 acknowledges “both texts being equally authentic”. We are incorporating the convention into Irish law by way of this legislation.
In the last page of the Bill, it states that both texts are equally authentic. That is fine, nobody disagrees with that. All the amendment does is state that when we speak about the Hague Convention, we mean the convention set out in Schedule 2 in English. It also exists in French and if anybody wants to refer to it in French, he or she can go off and refer to it in French, take it out of the Library or whatever. Simply for the sake of completeness, all it states is that what one will see in Schedule 2 is the English language version of it.
Deputy Barry Andrews:
Senator Alex White is trying to anticipate where there might be a conflict in the future and where there might be a possibility of two interpretations arising from the two languages, French and English. There can be no doubt that English, being a constitutional language in this country, is the language in which it will be interpreted in the event of that happening. As I stated, I will look at this matter again and we can revisit it on Report Stage.
Senator Alex White:
I am grateful to the Minister of State that it will be looked at again. I may have taken us down something of a siding on the interpretation point. I accept what the Minister of State says. There is an issue about the version of the convention to which we should have regard and I agree it would clearly be the English version. This, however, is more of a drafting amendment and does not anticipate a problem with interpretation.
Senator Ivana Bacik:
It might be dangerous to include a line such as this because wherever legislation incorporates the text of a convention, it is always in English. If we start stipulating in express terms “in the English language” in a section such as this in one Bill, the danger is that in other legislation where we have not inserted that phrase, a lawyer in the years to come might claim the French text is the definitive version. It is a technical point but it might be dangerous to start including this if it has not been the practice heretofore.
Senator Alex White:
I will withdraw the amendment on the basis that the Minister of State has said he will look at the issue again.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach:
Amendments Nos. 14 and 50 are related to amendment No. 2 and they will be taken together by agreement.
Senator Alex White:
I move amendment No. 2:
In page 16, line 30, after “Convention” to insert the following:
“and includes an adoption from a country other than one a party to the Hague Convention or a bilateral agreement if the Authority considers that the adoption can be effected from a third country in a manner compatible with this Act”.
This issue that arises from widespread concern expressed by those with an interest in adoption. The general response to what is being achieved with this important and comprehensive legislation has been welcoming. The Hague Convention clearly transposed into our law the basis for inter-country adoption. The codification of all of the previous legislation going back to the 1950s is welcome and I commend the Minister of State and his officials on the extraordinary work that has been done in putting this Bill together.
Concerns still remain, however, about countries that will not be covered by the Hague Convention. I am not for a moment saying we should not promote, improve and uphold international standards. That is the point of the convention. It requires a high level of scrutiny on adoptions across the board. The whole point of the convention is that it be applied as the basis for inter-country adoptions.
Inevitably there will be countries from which Irish people wish to adopt children that will not be in a position to fall within the remit of the Hague Convention. The easy answer to that is that if we are to apply an international standard, it must be that set out in the Hague Convention, and if a country does not meet that standard, so be it. No one, however, would want to dispose of human situations in that way. Every time a law is made, there will be hard cases and exceptions, especially in such a human area. Our concern, which is shared by many of the adoption associations, is that countries such as Russia, Vietnam and Ethiopia, could fall outside the requirements in the convention.
Bilateral agreements can be made with these countries. Currently the bilateral agreement with Vietnam is in the process of being renegotiated. We are aware that Vietnam has become a popular country for Irish applicants because it follows model practice promoted by the Adoption Board, the Health Service Executive and the Minister of State’s office. The Minister of State has indicated his support for a new bilateral agreement to replace the agreement that expires in April. The Department has yet to send a draft agreement, however, through the Department of Foreign Affairs to the Vietnamese authorities. The time is now critical for this new agreement given the situation in which many people find themselves. We do not want a hiatus to cause a collapse in adoptions from Vietnam, depriving 20 or more families and children of the opportunity to live in loving and secure environments. Ultimately those children might never be adopted if there is a delay in the application by Irish authorities on the this urgent issue.
Other countries have established bilateral agreements with Russia so there are precedents and a willingness on the part of the Russians to enter bilateral agreements. There are hundreds of thousands of children in orphanages in Russia and we should not close Irish homes to them. Standards must be applied but that is what the convention seeks to do and that is what the Minister of State wants to achieve.
Recent analysis of adoption law in Ethiopia deemed the regime there compatible with Irish law. Why then is there a hold up in the establishment of a bilateral agreement with that country?
Senator Ivana Bacik:
I support this amendment. Like other Senators, I received information from the International Adoption Association that highlighted its concerns in respect of children who have been adopted or who may be adopted in future by Irish parents from countries without bilateral agreements but where they are being prepared but are not yet concluded, particularly Vietnam, Ethiopia and Russia.
In excess of 1,000 children have already been adopted from Russia. There is, however, a concern among the members of the association that because agreements are in the process of being finalised and because the Bill is proceeding with such haste, these countries might fall outside the terms of the Act as currently drafted. This is a useful amendment to cover that instance, not in any way by lowering the standards that must apply in any inter-country adoption but ensuring countries with which bilateral agreements are being concluded but are not yet concluded may still be covered if the authority considers that the adoption can be effected in a manner compatible with this Bill.
12 o’clock
There are detailed provisions on the bilateral agreement arrangements in sections 73 to 80 of the Bill. This amendment does not serve to undermine those but includes in the definition section a recognition that there may be a shortfall in time with some of these countries and recognises that there are already families in Ireland who may be in the process of concluding individual arrangements with children in other countries, notably siblings. Families who have already adopted a child have a real concern that in future they might not be able to adopt siblings. I know that other provisions cover this matter, but it is an important amendment to the definition of the section.
Senator David Norris:
I support Senator Bacik, especially her final remarks. It would be cruel to inhibit the adoption of a sibling because adopted children, particularly if they are of a particular age group, can often be bereft and in need of support even though they may be placed in a positive family. Concern has been expressed to me about Vietnamese adoptions and, in fact, people have even indicated their concern that the Department is not serious about meeting the requirements within the timeframe. After the debate on Second Stage I had further communications with people who said they did not take the Minister of State’s assurances seriously. I would like to provide him with this opportunity to strengthen his response in this area.
In a general profile, this section examines inter-country adoptions and three different scenarios are created. First, there is the domestic adoption of Irish-resident children, which is not the subject of this amendment. Second, there are inter-country adoptions effected outside the State and, third, inter-country adoptions requiring subsequent domestic adoptions. That reflects the current situation but the approach to certain provisions applicable to domestic adoptions could undermine the completion of inter-country adoptions effected abroad. For example, without prejudice to the provisions that concern the rights of fathers and the religion of parents, the treatment of these could have the effect of rendering inter-country adoptions which require subsequent domestic adoption incapable of being completed. This amendment addresses the point about the third country in a manner compatible with the Bill.
As it stands, the legislation contains impediments, for example, the ability of assessed and qualified applicants to provide loving and secure homes to children in need from other countries. There is ambiguity over the ability of Irish adoptive parents to complete such legal proceedings on their return which could result in foreign authorities declining Irish applications despite the laws in such countries being fully complied with. This would be contrary also to the essence of the Hague Convention whereby contracting states are obliged to accept adoptions completed under the laws of other contracting states.
We have a situation therefore where there are millions of children in institutions throughout the world, a comparatively small number of which — about 30,000 — are internationally adopted. Ireland has about 400 of these, yet we have this continuing inhibition contained in the legislation which is worth highlighting. That is covered by the phrase in amendment No. 2 which states that “the adoption can be effected from a third country in a manner compatible with this Act”. These issues arise from that matter. As the Bill stands, we have a situation whereby there can be at least the initiation and partial completion of an adoption with these third countries but that is dependent upon a subsequent finding of the High Court in Ireland.
Senator Paul Bradford:
I support the amendment. I brought the legislation to the attention of a number of my friends and constituents who are either adoptive parents or hope to adopt. One of the issues they raised strongly with me was the fact that countries outside the Hague Convention would become almost exclusion zones as far as the adoption procedure is concerned. What I have heard from my colleagues is important in the sense that they are not trying to reduce the bar. They want the standards and conditions applicable to the Hague Convention to be the set standard, but they want prospective parents to have the opportunity to adopt children from countries outside the Hague Convention zone. I support that concept. We are probably not talking about very many such adoptions. However, we must recognise that the possibility of the door being shut firmly in respect of a number of countries arising from their non-participation in the Hague Convention is a negative aspect in the legislation. The amendment would provide for the inclusion of such countries with the highest possible standards being applicable. I hope the Minister of State will reflect favourably on this amendment. It is one area of the Bill that has been brought to my attention by a number of concerned persons.
Senator Frances Fitzgerald:
I want to raise a couple of issues concerning these amendments and perhaps the Minister of State can cast some light on the situation. First, it is disgraceful that people are wondering whether or when the bilateral agreements will be concluded. If this matter was clarified it would relieve much anxiety for people who, for example, want to adopt children from different countries, including Vietnam. People are genuinely concerned about this. I will quote from a letter I received, which stated: “This is a massive blow to us, as we are registered with the mediation agency whose applications will effectively be put on hold from April 1st.” Perhaps the Minister of State can update the House on this situation. People are saying the Vietnamese Government has told the Irish authorities it will cease to accept adoption dossiers from Ireland from 1 April. Is that accurate or has the situation been updated? I hope it has, but if it has not it is unacceptable that people are left to worry that their applications will not go ahead because, for some technical reasons, we have not concluded the bilateral agreements. The Minister of State should clarify the current situation, what his intentions are and what other countries he will deal with through bilateral agreements. That would be helpful. These amendments seek to remove the uncertainty that exists currently, albeit unnecessarily.
I would like to hear the Minister of State’s views on standards and building flexibility into the legislation. The Bill requires some flexibility because Irish families may wish to adopt children from countries which, for a variety of reasons, have not signed up to the Hague Convention. Does the Minister of State envisage that some flexibility will be built into the legislation in this way while keeping the highest standards? I fully recognise there are downsides to this which is why I would like to hear the Minister of State’s views. What is the international situation with regard to this matter? Have other countries that have signed the Hague Convention continued to allow some flexibility so that people can adopt children from non-contracting states? Will that flexibility apply to our legislation in future?
Amendment No. 50 proposes one way of dealing with the points that have been raised. It would allow the adoption authority to make an exception. The authority could assess whether an exception was required or desirable, having regard to various factors, but ensuring the standards continued to be met. I would like to hear what the Minister of State has to say about these amendments. Can he outline the Government’s intention concerning the issues I have raised?
Senator Fidelma Healy Eames:
The whole point of this Bill is to facilitate families in Ireland who can provide a loving and secure home for children, many of whom are in institutions and would benefit from a good home, to do so. I speak in favour of these amendments. Some 78% of families in Ireland seeking to adopt children want to do so from countries that have not signed the Hague Convention or countries with which Ireland does not have bilateral agreements. We adopt approximately 400 children annually, which means that about 300 such babies potentially could be denied adoption unless we insert this important amendment. Every month, 20 babies are adopted from Vietnam which equates to 240 babies a year. It is critical a new agreement is put in place by 1 April.
I know what it is like to have to wait for an adoption baby from abroad. I would hate to think any hold-up in the process was due to some lack of action on the part of my Government.
I agree with the urgency of securing the bilateral agreement with Vietnam. I support the amendment to enter new bilateral agreements with Ethiopia and Russia, or at the very least to allow adoptions with these countries continue.
I also support the proposal concerning the adoption of siblings from non-Hague Convention countries. It has been well-documented that adopted children seek out other children in their own likeness. It gives them a sense of belonging. It is important we do not reject this amendment or else the supply of foreign adoption babies to Ireland will be cut off. It would also prevent parents from adopting the siblings, or even nationals, of their already adopted children.
I agree with the Minister of State that it is important we support standards set by the Hague Convention. However, when I first adopted in 1994, I was counselled under that convention, not knowing that it was not law. Since then the Adoption Board has been following the Hague Convention, even though it was technically not in force.
Senator Feargal Quinn:
The objective of these amendments, particularly in the case of adopting siblings, is worthy, one with which I am sure the Minister of State agrees. It may well be that the words used, technically, are not quite correct for the legislation. I do not know why as they seem fine to me. If the Minister of State is unable to accept the amendments as they are, it is possible to achieve the same objective by changing the text to address his concerns.
I was not aware, until Senator Healy Eames stated it, that 78% of adoptions are from non-Hague Convention countries. It concerns me a great deal because I assumed adoptions from Russia, Vietnam and Ethiopia were exceptions. I hope the Minister of State will accept these worthy amendments in some form or other.
Senator David Norris:
Concerning my earlier comments on the Department’s attitude regarding Vietnamese adoptions, there seems to be a certain amount of confusion. The closing of the existing bilateral agreement was triggered by the Office of the Minister for Children and Youth Affairs. That was in spite of a general acceptance that the Vietnamese experience has been a model one and was promoted as such by the Adoption Board. On top of this, despite the positive remarks the Minister of State made during the debate, he has not yet sent a draft of the new agreement to Vietnam. I accept he made a successful and positive trip to Vietnam before Christmas but this agreement expires in less than two months. My colleagues have also raised concerns about agreements with Ethiopia and Russia and the possible adoption of siblings.
Deputy Barry Andrews:
I thank Senators for their contributions on this important area. It has occupied much of my time in preparing this legislation over the past six months. I have had many discussions with the Adoption Association and many parents who approached me in my constituency office and elsewhere on this matter. I have received many e-mails from parents concerned about the situation, particularly as it applies to Vietnam.
I have enormous sympathy with those parents because they have come through a long and personal process. For many, it began with approaching the HSE to apply for adoption. While there is a necessary element to the process with due diligence required, much of it is regrettably prolonged unnecessarily.
I understand the huge frustration expressed by adoptive parents on achieving a bilateral agreement with Vietnam and other countries. The Hague Convention, however, has at its core the protection of children rather than the protection of parents’ rights. While this is putting it bluntly, it is understood and no one will argue with that. It is important to place that as a central principle in this debate.
Some questions were raised about the safety of adoptions from Vietnam with the United States and Sweden preventing any further adoptions from the country. We began the process of rolling over the existing agreement or securing a second agreement by 1 May. The Government made a decision to negotiate a new agreement on my recommendation in December, following a visit by members of my office and the Adoption Board to Vietnam. I hope this week to send a draft agreement to the Vietnamese Government through the Department of Foreign Affairs. I have communicated this to the Adoption Association and other interested bodies. It will be up to the Vietnamese Government to agree to the draft. Hopefully, we will be in a position to settle this issue before the deadline.
We did encourage prospective adopting parents to identify with Vietnam, as it is a country in which we have confidence. While I sympathise with their concerns about the agreement, I ask them to keep their nerve on this. The Government is determined to reach an agreement with the Vietnamese authorities. Its policy is based on solid and sound investigations of the Vietnamese adoption process. We are fortunate enough to have an agency on the ground to assure us about this, unlike other countries which have too many, and have a secure system in place.
Senators have been calling for a parallel system for countries that have not signed up to the Hague Convention or those with which we do not have a bilateral agreement. We have gone to enormous trouble to get a bilateral agreement with Vietnam and we will do so again with Russia and Ethiopia. If we were to create an alternative mechanism that would operate outside the principles of the Hague Convention in respect of adoptions from countries which, for whatever reason, cannot sign up to that convention or with which we do not have bilateral agreements, it would dilute what we are attempting in this Bill. We cannot anticipate developments in this regard.
We are seeking to enter a new era with regard to adoption in this country. The Bill is the product of a lengthy consultation period which commenced in 1993, when we signed the Hague Convention. The initial intention was to transpose the latter into Irish law but it was then decided to consolidate the principal Act and the various amendments relating thereto into the legislation before the House.
Having learned from the mistakes made in other countries, engaged in an extremely lengthy period and received the views of all interested parties, we want to create a new structure under which there will be a solid grounding for adoption and in respect of which concrete minimum standards that are complaint with the Hague Convention will apply. The Government has given this matter all due consideration and any dilution of the central principles I have outlined would weaken the Bill.
We are moving forward and trying to put in place further bilateral agreements. Adoptions of Russian children will be able to proceed until the Bill has been enacted. We must wait until the situation relating to Vietnam is resolved before trying to exert further pressure in order to achieve agreements with Russia and Ethiopia, which have been popular among prospective adoptive parents.
Senator David Norris:
I thank the Minister of State for his reply and I welcome the fact he has taken up the invitation extended to him by the House to provide a clearer commitment. He has certainly done so. There was a precision, clarity and materiality about what he said, particularly in respect of Vietnam, and I am sure his comments will be welcomed by the international adoption agencies. I welcome his statement to the effect that the draft agreement is being worked on, is almost complete and will be sent to Vietnam by the deadline. I thank the Minister of State because we have already done a useful day’s work. What he said represents a clear advance on the much more nebulous commitments put forward on Second Stage.
On the principle of the need for clarity, a good regime, etc., in respect of non-Hague Convention countries — some Members raised issues in this regard — the Minister of State’s approach is one of integrity. What he said certainly convinced me because I have always believed, in respect of matters of adoption, the absolute and fundamental principle revolves around the welfare of the child and not around the very human needs and aspirations of prospective parents.
Not only am I satisfied with the arguments put forward by the Minister of State, I am also very pleased by them. He stated that he has already communicated the position with regard to Vietnam to some of the adoption agencies, so there is probably not much need for Members to do likewise. This represents legislative progress in which the House has played a reasonable part.
Senator Alex White:
I also welcome the commitment the Minister of State provided in respect of the draft agreement with Vietnam. He indicated that he has informed the various interested bodies with regard to this matter. It is good that he should do so. As recently as yesterday morning, one of the organisations in question, the International Adoption Association, IAA, did not appear to have been informed of developments. The IAA may have received information yesterday afternoon, which is fine. I will not make an issue of this matter.
Senator David Norris:
The Senator can give the IAA the good news.
Senator Ivana Bacik:
I move amendment No. 3:
In page 17, between lines 25 and 26, to insert the following subsection:
“(4) In this Act, “married couple“ means an opposite-sex or same-sex married couple or a couple who have entered a registered civil partnership with each other.”.
I welcome the opportunity to discuss this important amendment but I should at the outset declare my interest as counsel in the case taken by Zappone and Gilligan regarding the right of same-sex couples to marry, which clearly has a bearing on my proposed amendment. Amendment No. 3 takes a conservative approach in that it follows the practice in the bill of using the term “married couple”. My colleague, Senator Norris, has tabled an amendment which takes a different approach but would have a similar effect. I considered a more radical amendment that would have extended the categories of those who are eligible to adopt beyond persons whose relationships are recognised. This Bill replicates an anomaly that exists in Irish adoption law whereby the only persons eligible to adopt are either single persons applying alone or married couples. In other words, no provision is made for adoption by a cohabiting couple, whether of the same or the opposite sex. That is anomalous because it means that a lesbian woman, gay man or heterosexual person could adopt on his or her own account irrespective of whether he or she is living in a relationship with another person. Eligibility for adoption would be considered on the basis of the individual and whoever he or she lives with will have no legal relationship with the child. It is anomalous that cohabitees are not capable of being considered as adoptive parents.
The more radical amendment I considered would have the expanded “married couple” to “married couple or cohabiting couple or person” but I restricted the scope of my amendment to a definition of “married couple” as a married couple of opposite sex or the same sex or a couple who have entered into a registered civil partnership. This is a pre-emptive amendment because it looks ahead to the time when, as the Government has clearly indicated, a legal system of civil partnership will be in place for same-sex couples.
If the legislation proceeds as the Government has indicated in the heads of the Bill, a system will be established of presumptive recognition of cohabiting opposite sex couples. Perhaps my amendment should, therefore, include this type of relationship. The amendment would also have to be accompanied by various other amendments to take account of a couple who were previously in a registered civil partnership, just as the present Bill provides that a couple whose marriage has ended will no longer be considered to adopt as a married couple. Where “married couple” is used in the Bill, it is taken to mean a couple who are married to each other and are living together. I am trying to extend in a somewhat restrictive manner the categories of those who are eligible to adopt to include only those same-sex couples who are married or have entered into civil partnerships.
When I raised this issue on Second Stage, the Minister of State responded: “Adoption is a right that is afforded to children, and the right of a child to a family is at the core of adoption legislation.”. I completely agree with that statement and believe we cannot emphasise it enough. He went on to state:
There is also a right in my view which must be considered, that of same sex couples. Their rights need to be explored. The Civil Partnership Bill is the forum at present for the extension of those rights. I am an extremely strong supporter of those rights but this Bill is not the appropriate forum for that.
I would accept the Minister of State’s argument except that the heads of the Civil Partnership Bill make no reference to children or adoption. This is the reason Senator Norris and I have proposed amendments. The British legislation on civil partnership was introduced subsequent to reforms of that country’s adoption law to enable adoption by same sex couples. A precedent therefore exists for providing for eligibility for same sex couples in adoption rather than civil partnership law. I urge the Minister of State to accept this method of extending eligibility, notwithstanding his stated view that the Civil Partnership Bill is a more appropriate vehicle. I welcome his acknowledgement that the right of same sex couples in this regard needs to be explored but it would be useful to do so in the context of the Bill before us.
The Citizen’s Information Board guidelines on adoption by same sex couples indicate that current legislation is clear on the issue. Under current legislation it is not possible for a partner to apply to become a guardian of a child nor is it possible for him or her and the same sex partner to adopt a child jointly even where one of them is the birth parent of the child. This can no longer be justified in a modern state wherein, we know, there are already many children living within a secure and loving family whose parents are a same sex couple but with whom the child has no legal relationship as a couple even where one of the parents, as would be typical, is the birth mother of the child. That is an anomaly.
Many years ago, although rather belatedly, we equalised the position of children born in and outside marriage, which was a very important move. We say, and the Minister of State has reiterated this, that in all legislation of this type the primary concern must be the best interests of the child. I ask the Minister of State how it can be in the best interests of the child to continue to discriminate against children of same sex couples. There are in Ireland already many children, some of whom are well into their teens and older, whose relationship with their non-birth parent within a same sex relationship is not legally recognised. It is wrong that we continue not to recognise their relationship with their families.
I have no doubt there will be opposition to the amendments tabled by myself and Senator Norris. It may well be that the old canard that children have a right to two parents of the opposite sex will be restated. However, that is a meaningless thing to say. Children live in many different arrangements and with many different parenting situations. We have had in Ireland a long history of different types of parenting arrangements. All research indicates that it is the quality of parenting that matters to the child. What is important is that the child live in a loving home. The quality of parenting rather than sexuality or gender of either or both parents is what matters. I refer the Minister of State to the research of Susan Golombok and others. The most authoritative research establishes that there is no disadvantage to a child in being brought up by a same sex couple, a single parent or married parents, rather it is the quality of parenting that is of paramount importance.
At a recent seminar on civil partnership organised by Senator Norris, Fergus Ryan, an expert on this area of law, made the point that extending rights to children of same sex couples, as in this case, is not taking rights from married couples or from children within marital families, rather it is giving extra cake — to use that analogy — to people who should have it. That is an important analogy to make. If there are already, as we know there are, children in Ireland living in families with same sex parents who currently have no right to a legal relationship with the non-birth parent in that relationship, it is wrong that we do not extend to them the right to be adopted by their other parent thus ensuring they then have all the rights that follow from that. I am speaking again about the rights of the child as this must be framed in that context.
I cannot see any logical justification for opposing the principle behind this amendment and the amendment tabled by Senator Norris. I acknowledge many other amendments would have to flow from this amendment, if accepted, in particular to recognise the ending of a civil partnership. The amendment is predicated on a civil partnership regime being introduced. In principle, the amendment seeks to extend recognition for adoption eligibility to same sex couples. I do not see how the Minister of State can oppose that principle.
Senator David Norris:
My amendment is somewhat different. It seeks to insert in chapter 3, page 29, section 33, which states that the authority shall not make an adoption order or recognise an inter-country adoption effected outside the State unless the applicants are a married couple who are living together, a new subsection (b) which states that that the applicants are a couple of the same sex, over 21 years of age who can demonstrate that they have been living together within the jurisdiction for not less than two years and who have demonstrated to the appropriate authorities under this legislation that they are fit persons to adopt. I believe this meets the type of criteria indicated by the Minister of State, including a stable and successful relationship. Also, the welfare of the child is seen to be paramount and has been so adjudged by an independent body.
Elements of the amendment tabled by my distinguished colleague, Senator Ivana Bacik, appeal to me. In particular her amendment assumes the marriage of two people, Katherine Zappone and Ann Louise Gilligan, which is the subject of a case before the courts, is valid under the Irish Constitution. It is a case I strongly support. It seems to me to be perfectly clear and could not possibly be clearer going back over 40 years. It is precisely the reason Declan Costello in his 1967 governmental review of the Constitution indicated that he, as a member of Government and a distinguished lawyer, felt it necessary to spell out what had not been spelled out previously, namely, that marriage under the Irish Constitution should mean marriage between a man and a woman. It is obvious that in his opinion it does not mean that. That view was articulated in 1967, some 42 years ago. I am taking as granted that that is the position. In other words, I am waiting for the courts to recognise the constitutional position, namely, that Katherine Zappone and Ann Louise Gilligan are married and that other marriages are valid. It would be extraordinarily insulting on the part of the State of Ireland were we to tell Canada and other countries what should be their arrangements in regard to marriage and whether they are valid. That is my reason for supporting Senator Bacik’s excellent amendment.
My amendment commends itself because it is directly in line with the principles of this legislation. It is idiotic to say we accept there are people in same sex relationships, each of whom can individually adopt a child but that the person not involved in the adoption has no relevance whatever in the situation. That is completely idiotic. Senator Bacik was reserved in what she said.
Senator Ivana Bacik:
I am always reserved.
Senator David Norris:
It is idiotic, contemptible and inhumane and it does not redress this human situation. Moreover, if we are interested in the rights of the child, why then do we not listen to what the children affected are saying? There have been a number of marvellous, courageous and splendid interviews on radio, television and in the newspapers by these children who want to know why we do not recognise their relationships with their parents. If one wants to know whether the shoe pinches, one asks the foot, not the shoe. In this case, the foot is being ignored. There is a strong argument for this provision on the basis of what the children who are already in this situation are saying. It is idiotic that same sex parents can individually adopt a child and that the non-adopting parent is not permitted to have a legal relationship with the child. That is farcical. It is the result of cowardice on the part of the Government which refuses to face up to what is essentially sectarian and religious prejudice and hypocrisy.
With regard to the domestic partnership law, this is a blatant flaw. This was made obvious during the briefing session. The British amended their adoption legislation before introducing their civil partnership legislation. In light of the fact that we have produced a civil partnership Bill with this glaring lacuna, it would seem obvious that this situation should be addressed at this point. A recent survey indicated that 62% of the people have no difficulty whatever with recognition of full civil marriage for gay people which would automatically confer on them the right to adopt. Why is this Government intimidated by a few backwoods people? Why not get on with the job and do it with some little remaining degree of vision? I call on the Government to do this in the light of the clearly expressed views of the people which have vindicated people like me who have always said the Irish are decent, tolerant, compassionate, understanding, and not at the blatant level of idiocy and hypocrisy that we see in this neglect of the welfare of children. It calls into question that ceremony in the Mansion House, out of which I am very sorry I did not walk, where we trumpeted our succession to the ideals of 1916 and the Dáil of 1919 and recited yet again this notion of equality for children. No religious prejudice or preconception should ever be allowed to take precedence over the rights of children.
It was a proud day for me when I sat in this Chamber and heard a Fianna Fáil Minister, Máire Geoghegan Quinn, say she would need a clear, cogent and factual reason to introduce discrimination against any Irish citizen. That was a proud day for democracy and I was thrilled when I heard it. I would like a bit of action on the fine rhetoric that emerged from the former Taoiseach, Bertie Ahern, when he said there was absolutely no justification whatever in law for disadvantaging any Irish citizen on the basis of sexual orientation.
With regard to capacity I read with interest that there was evidence given by a person in that case who presumed to give evidence, who had no qualification whatever, had never published any research, who, when I said that in the House had the impertinence to write to the Cathaoirleach to complain. How dare those people stick their noses into an area where they have no competence whatever.
Senator Mary M. White:
I empathise with the Senators who have put forward this amendment. There is an anomaly there if a single person can adopt. I know a single lady who has adopted a baby from the Caribbean. If two people of the same sex are living together why can one not adopt the child of the other? I congratulate Senator Norris on his courage in speaking out alone. It was a lonely station. Some of the comments we hear in this Chamber about same sex relationships are not the general opinion of the Irish people. We are a very tolerant race.
Senator David Norris:
Hear, hear.
Senator Mary M. White:
We were trampled for 800 years and we are not going to isolate anybody.
Senator David Norris:
Well said.
Senator Mary M. White:
In the course of my studies on suicide and self-harm I saw the report of the Association of Gay and Lesbian Association to the effect that people who have sexual problems have a higher propensity to die by suicide which is unforgivable. Will the Minister of State say why, if single people can adopt, one partner in a cohabiting couple cannot adopt the child of the other? We will not resolve the issue in this Bill but will do so when we discuss the civil partnership Bill.
Senator Rónán Mullen:
It never gives me satisfaction to visit this issue because it is deeply personal for many. I recognise Senator Norris’s particular knowledge of the issue and his attachment to his views which many support. I disagree with these proposed amendments. This is a sensitive, personal issue. I have friends who are homosexual who do not agree with my views on this issue and there are those who do agree.
Senator David Norris:
Gay people who agree.
Senator Rónán Mullen:
Indeed.
Senator David Norris:
Senator Mullen knows some very odd people.
Senator Rónán Mullen:
It is very hard to have this debate because, despite the many welcome advances we have made in our ability to discuss a range of issues openly, people on both sides of the argument, particularly those with a traditional view such as mine, can easily and quickly feel demonised. They sometimes feel bullied into not expressing their views. I would like for people never to abandon values of absolute respect, regardless of their point of view, even if they feel that those points of view are destructive. No doubt Senator Norris believes that my point of view is destructive. Some of his and Senator Bacik’s points of view, were they to carry weight, would be destructive of our society and injurious to the dignity of persons. That is my only motivation in speaking on these issues. I would rather that people’s arguments on these issues were never characterised as religious. I describe myself as religious and know that Senator Norris is also a religious man. We have very different views on this issue just as people who do not share my faith or any faith might hold different views, or perhaps the same views.
I try to approach the issue from the point of view of respect for what I regard as the natural law and its philosophy, which is far from being the preserve of religious people, as Professor John Finnis in Oxford makes clear. I also try to seek out the common good. I am absolutely at one with Senator Bacik in trying to work out the implications of the statement that the welfare of a child shall be paramount. That is my starting point in respect of a range of issues, whether research that involves the destruction of embryos or adoption by same sex couples. As Senator Ross said on another topic, on another occasion, it is inaccurate to portray as exclusively religious or sectarian viewpoints that are deeply held and whose premises perhaps differ from those of the proponents of these amendments. It is dangerous to label the views of other people as either sectarian or religious, although I support the right of religious people to advance a religion-based argument. I hear all sorts of arguments based on prejudice and personal convenience every day of the week. Every voter and public representative is entitled to take his or her lived experience into the ballot box and the debating chamber. My motivation is to seek out the common good based on rational argument and principles that seek to vindicate the dignity of the person in all circumstances, without fear or favour. It is in that spirit that I approach the amendments tabled by Senators Norris and Bacik. I am taking as my starting point the constitutional architecture in which we operate. I refer to the State’s pledge in the Constitution to “guard with special care the institution of Marriage, on which the Family is founded”. I heard what Senator Norris said about Mr. Justice Costello’s views. It would be the settled view of most people in society that the Constitution prefers the family based on marriage — by which I mean marriage between a man and a woman — not because it wants to be hard on anybody or to disrespect anybody’s private life, but because it believes that marriage offers the optimum set of circumstances for the upbringing of children in our society. That is not to say that children who find themselves in circumstances other than marriage are not well loved and, in many cases, very well reared. The business of the State, and the reason the State takes an interest in marriage, as distinct from leaving it as a private arrangement between parties——
Senator David Norris:
I listened with great interest to what my colleagues said and I was particularly heartened by the Minister of State’s comments. I do not anticipate that we will succeed in respect of this matter. I cannot speak for Senator Bacik but I will not push my amendment to anything other than a voice vote. However, we will seize the opportunity to take on board some of what has been said. The Senator and I have agreed to work together to produce a composite amendment to be moved on Report Stage. This amendment will contemplate some of the matters that have been raised.
To a certain extent I am pulling my punches when I state that no amount of high-octane smarm will conceal attitudes. It is one thing to make a ritual gesture in the direction of dispassionate, intellectual inquiry, debate and so forth, but that is just not the case. If I am tempted further, I will place certain matters on the record of the House. At this point, however, I will not do so.
I would certainly take some of these things personally. I have no desire to become a parent but I recognise the extraordinary nature of the discrimination that has existed during my lifetime. I come from a fairly respectable background. However, I have known eight people who were murdered simply because they were gay. The source of this is the Christian church — one church in particular — and the kind of pastorals that usually emerge during Lent. I must state that I am not taking any more of it.
The comments relating to young males who are gay committing suicide are, of course, true. However, what the hell else do people expect when the various churches continue to be exempted from the operations of the equality legislation? There have been numerous reports in respect of this matter. One recent report indicated that 80% of bullying cases in schools involve a homophobic element and that in 80% of such cases nothing is done. The main reason is that people who are paid by taxpayers are afraid to take action. The person who has the final say, namely, the manager of a school, is almost invariably a member of the church. That is not tolerable. The Minister of State is a very decent man and I ask him to bring this matter to the attention of his colleagues.
The notion of the right of a child to have a father and a mother is absurd. Who can deny that right? It is an observable fact. A child’s parents may not be present but I cannot understand how he or she could come into existence in the absence of an admixture of male and female. He or she may be conceived in a test tube or in some other way but he or she will certainly have a father and a mother. Let us put this notion to one side.
What we are dealing with is the nurture of children. Let us forget the various points regarding the possible longitudinal defects of certain studies which have been impugned by people who apparently did not even read them. I thought that was an engaging admission, as was the admission made by the other person quoted by Senator Mullen who stated that she has no expertise whatever in the matter, that she has never written any academic papers on it and that she does not possess any qualifications in this area. That is splendid. These are the types of people to whom we should listen. How impressive.
I react very badly to the notion that in the single instance of gay people we are going to reverse the procedure that usually applies to every citizen and state that they are guilty until proven innocent. No thank you. Let us see the studies which indicate that children adopted by gay people can be damaged. There are no such studies. It is one thing, as happened on previous occasions, to impugn the background and reputation of people engaged in the production of results on one side but it is quite another to signally fail to produce any evidence that damage can be caused to children adopted by gay people.
I wish to return to the issue of the rights of children. As stated, we already possess the evidence provided by children adopted by gay people. Why are theirs the only voices to which those who strongly oppose what I am suggesting absolutely and adamantly refuse to listen? Yesterday, as part of my day’s business, I met two people who want to start a radio station in Dublin which will cater to the gay community. After approximately 45 minutes, I asked the individuals with whom I was meeting whether either of them is gay. They both replied in the negative but indicated that there is a need for such a radio station to fill a gap in the spectrum. That is both interesting and heartening because it suggests that this matter has really entered the mainstream. One of the people in question said that I might recall a letter he sent me in which he indicated that both of his parents are gay. He is of the view that he has been enriched by his experience.
In all the newspaper articles and television and radio reports relating to this matter, I have never heard a child of gay parents state that he or she was damaged by his or her upbringing. What damaged people was the disgusting, immoral and hypocritical way in which individuals were forced into marriages to which, in light of their deepest instincts, they were not suited. Children were born in such marriages, which eventually collapsed and broke down. Let us be honest and not engage in a theoretical approach to this matter. Let us consider the rights of children and what they have to say in respect of it.
I feel strongly about this issue and I am not prepared to be a second-class citizen. When I hear people use phrases such as “well they are not equal” and “forms which do not work so good”, it is not the grammar that particularly offends me — the word “well” as opposed to the word “good” should have been used — rather it is the idea that I will continue to be defined in a certain way. If one examines the language used by my colleague, one will find that regardless of whether he states that he is representing the Roman Catholic view — he indicated that this is not necessarily the case — all the language used, such as “complementarity” etc. follows, very directly, the line taken by the Vatican. That line is deeply destructive in respect of gay people and I strongly resent and repudiate it.
Senator David Norris:
I welcome the fact that my colleague, Senator Bacik, referred to the case of Mrs. Gill. I do not believe she would object to her name being used in this debate. Mrs. Gill is from a farm outside Birr in County Offaly in the heart of Ireland. Her daughter was killed in a road traffic accident. She desperately wanted her daughter’s same-sex partner to be recognised but that was not possible. When one has this level of commitment to the sort of change we are seeking from middle Ireland, we must listen again. We must also listen to the voice of the children in question.
I hesitate to say the current position is unchristian. I will leave that to George Bush whose Christianity led him to bomb hundreds of thousands of people to extinction. I was never the media spokesperson for the Roman Catholic archdiocese of Dublin, as Senator Mullen was, and my habits of speech and intellectual curve, so to speak, do not always follow the Anglican model, from which I diverge greatly.
Phrases such as “sinister thought control” and “dangerous culture of political correctness” were used. Having been invited to place on record certain matters, I will do so. Senator Mullen will remember an occasion during a previous debate when he leaned across to me and said that if I continued he may have to rake up a certain article which appeared in——
Senator Rónán Mullen:
On a point of order, I did not say that.
Senator David Norris:
Yes, he did.
Senator Rónán Mullen:
I call on Senator Norris to withdraw that remark.
An Leas-Chathaoirleach:
We are straying from the amendments.
Senator Rónán Mullen:
I will place on record the precise circumstances of the conversation.
Senator David Norris:
I am also happy to do so. The conversation referred to a nasty piece in a tabloid newspaper which suggested I was promoting sex with children. That is sinister thought control which can be denied as no one can say one way or the other whether the conversation took place because, unfortunately, the microphone may not have picked it up.
Senator Rónán Mullen:
I, too, am happy to place on record the details of the conversation. I call on Senator Norris to withdraw the untruthful version of events he provided.
An Leas-Chathaoirleach:
Senator Norris should speak to the amendments.
Senator David Norris:
I do not propose to press the amendment or say any more about it. I do not speak on this issue very often because I have done so in the past. Like everywhere else, 90% of the people in the constituency I represent are not homosexual. While it is important to consider many other issues, as I have consistently done, there are circumstances when it is necessary to discuss this issue. If we spent the entire afternoon discussing this one amendment it would distort our responsibility towards this legislation.
Senator Rónán Mullen:
I am sorry, but I must respond to what Senator Norris has put on the record. The Senator was being rather uncharitable about certain people whose traditions and views——
An Leas-Chathaoirleach:
Senator Mullen, this has nothing to do with the amendment.
Senator David Norris:
The Senator said it.
Senator Rónán Mullen:
I did not say it. What I did——
Senator David Norris:
He would hardly remember it if he did not say it. How could he remember it?
Senator Rónán Mullen:
Because Senator Norris sulked about it for three weeks.
Senator David Norris:
If I promise to make no further contributions, will I be permitted to make four short points?
An Leas-Chathaoirleach:
Do they pertain to the amendments or the section?
Senator David Norris:
They are directly related to the amendments and respond to the significant points that have been raised. The glory of our Constitution is its organic nature. It did not stop in 1937. This is why one can elicit unenumerated rights from it. If it was a static document rather than being subject to revision by the wish of the people, we would be stuck at the point where its framers placed women exclusively in the home. That provision was removed by a referendum of the people of Ireland.
Senator Rónán Mullen:
I think it is still there.
Senator David Norris:
Is it still there?
Senator Frances Fitzgerald:
In spite of us.
Senator David Norris:
It definitely should be removed. I find that difficult to believe. At least I have learned something. We are back in the 19th century.
Senator Rónán Mullen:
It needs to be tweaked.
Deputy Barry Andrews:
The 20th century.
Senator David Norris:
I have been proven disastrously wrong in that regard and I am prepared to admit that my ignorance is yet again revealed to be one of the great natural resources of Ireland.
Senator Rónán Mullen:
The Senator should not criticise my grammar.
An Leas-Chathaoirleach:
Senator Norris should proceed to his second point.
Senator David Norris:
The Minister of State claimed that Britain lacks a constitution. I think they have a constitution but it is unwritten. How else would her gracious majesty, Queen Elizabeth II, by God ordained, be described legitimately as a constitutional monarch?
An Leas-Chathaoirleach:
I fail to see the significance of the Senator’s comments to the legislation before us.
Senator David Norris:
My next point, on the recognition of foreign marriages, is even more important. Arrangements are in place for the recognition of such marriages and I do not consider it appropriate to impugn them. Foreign divorce can also be recognised. In that context, I find it tendentious to speculate on the notion of polygamy. I do not find such discussion flattering or well informed but it is of a piece. Subsequent to the establishment of the Wofendon committee to investigate homosexuality and prostitution, a subsequent report was issued in this country which linked homosexuality and drug abuse. One gets a little weary as a respectable old fairy being everlastingly compared to tarts and junkies.
Senator Rónán Mullen:
Junk food.
