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Dearbhail MacDonald: Bill to allow reporting of family cases will benefit all

THE Irish Independent was one of three news outlets that sought permission from the High Court to report the recent, landmark surrogacy action.

We believed the case was of such manifest importance that limited reporting, respecting the privacy of the parties at all times, was warranted.

It is beyond dispute that the case raised issues of serious public interest, not least because of the failure of successive governments to legislate in sensitive areas such as surrogacy, IVF and stem-cell research.

This legislative impotence stems from the longstanding failure to clarify when the 'unborn' enjoy legal protection.

For my own part, I sought to cover the surrogacy case because I knew the State would be compelled to articulate its view on Article 40.3.3 of the Constitution.

Article 40.3.3, which protects the equal right to life of a pregnant woman and her unborn, was inserted into the Constitution in 1983 after the 'right to life' referendum.

The State's view of that 20-year-old provision is critical not just to surrogacy, but also to the current abortion law debate.

The Government's thinking on who is a mum or dad is also crucial to the evolution of reproductive laws and the forthcoming debate on same-sex marriage.

At first, our efforts to overcome the absolute ban on reporting of all family law and almost all childcare proceedings – known as the in camera rule – were rebuffed.

But with the blessing of the genetic parents, a protocol was devised whereby designated media could attend the surrogacy case and report the legal submissions.

All sorts of compromises were reached in the process.

The approved reporters could not attend the testimony of the genetic parents or the surrogate mum (the genetic mum's sister) and we could not use social media during designated periods to facilitate court motions or other matters that might arise during the live hearings.

The identity of the parties was, and remains, sacrosanct.

And you know what? The protocol worked. The sky didn't fall in just because reporters (admittedly on their best behaviour) were present.

As a result, the public was able to discuss a hugely important topic. The legal submissions also flushed out the Government's stance on motherhood and where it believes science is taking us.

Last week, Justice Minister Alan Shatter cited, with approval, the decision to allow limited reporting of the surrogacy action when he commended the Courts Bill 2013 to the Seanad.

The bill seeks to pierce the absolute veil of secrecy that stalks our family law courts and provide for a relaxation of the in camera rule to enhance public confidence in the operation of family law and inform public policy.

The bill, if passed, will allow media to report family law and child care cases subject to the overriding rule that the identity of the parties, including children, are fully protected. But the courts will retain a residual power to exclude the media and otherwise control the flow of information.

In making these exclusionary orders, judges can have regard to a wide range of factors including the best interests of the child; sensitive personal information; whether media attendance might inhibit or cause undue stress to witnesses; or if information given is commercially sensitive.

It will be a criminal offence, attracting fines of up to €50,000 and/or a three-year jail term, to breach such orders.

If the spirit of the planned bill is supported in practice it could prove to be one of the most important laws introduced by this Government.

But it's a big if.

T here is a risk that parties, including elites and state bodies whose activities are challenged in the courts, will seek to hide behind the exclusions thereby maintaining the status quo of keeping everyone in the dark about divorce, custody and other vital issues.

The new law will require a leap of faith by all, including families, the State, the judiciary and the media.

Working protocols and procedures that render the law effective and fair must be devised to support the legislation.

Otherwise the operation of our family law courts will remain opaque and everyone will lose out.

Irish Independent