The Government has pledged to introduce fresh legislation that will give opposite sex couples the choice as to whether the man or woman avails of adoptive leave.
The Oireachtas passed the Parent’s Leave and Benefit Bill on Tuesday, which is a new parental leave measure in addition to existing provisions.
The legislation introduces two weeks of leave with social welfare benefit of €245 a week for each parent in the first year of a child’s life.
On the issue of leave for adoptive parents, Minister of State for Equality David Stanton said the Bill would "address the lacuna" in the existing law whereby a married male same-sex couple cannot avail of adoptive leave.
“As currently constituted, the Adoptive Leave Act 2005 essentially only allows an adopting mother to take adoptive leave,” he said. “The adopting father, other than a sole male adopter, is entitled to adoptive leave only where the adopting mother dies.”
However, Mr Stanton acknowledged concerns that in seeking to address one inequality, the Bill would create another.
The issue relates to how same-sex couples - but not opposite sex couples - would enjoy the benefit of choosing which parent can take adoptive leave.
“Over the course of drafting, it became apparent, that in seeking to address an inequality, another inequality could be created,” he said.
“It would be unfair not to reform the adoptive leave regime to allow opposite-sex couples the same choice - which of them should take adoptive leave.
“My department is working on provisions which will give all adopting couples, whether same sex or opposite sex, the right to select which of them will be the qualified adopter i.e. which will get adoptive leave and benefit.
“In my view, giving the option to select the qualified adopter to same sex couples only would be discriminatory as, unlike the situation with maternity, there is no biological reason why it is always the adopting mother who gets adoptive leave.”
Mr Stanton said the reform would be “complex” and that rather than delay the current Bill, he would seek to address the issue in future legislation.
“Introducing this reform is complex,” he said. “This is why it was decided to insert these provisions into a later Bill so not to jeopardise the enactment of the Parent’s Leave and Benefit Bill by November 1st.”
Mr Stanton pledged that the issue would be dealt with in the Social Welfare Bill that will go through the Oireachtas in the next four to six weeks to provide for the measures announced in the Budget.
Fianna Fáil justice spokesman Jim O’Callaghan said however that the legislation “is a form of sexual orientation-based discrimination”.
He said: “It is highly regrettable considering the steps this country has made in terms of equality with people who are gay over past five or 10 years that we are introducing legislation that blocks out a section of them”.
Opposition parties agreed to pass the legislation to meet the November 1st deadline. The Seanad has already passed the Bill.
Referring to rumours of a general election, Mr O’Callaghan warned that Mr Stanton “might not be in the driving seat” on the issue in future, and said matters could “go on the back burner”.
Fianna Fáil Kildare TD Fiona O’Loughlin hit out at “the excuse that the Government didn’t have time to draft the relevant provisions”.
She said this is “simply not good enough because this has very real consequences for the LGBT community and is completely discriminatory against gay fathers and their children”.
Fianna Fáil and Sinn Féin introduced amendments to provide for gay married men to avail of the provision but they were ruled out of order on the grounds that they would be a charge on the exchequer.
