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Family Law Solicitors

Slow delivery of legislation on issue of reproduction

Wednesday, 18 February 2015

The Irish Times

Paul Cullen

Whatever views there are about the Government’s plans to legislate for assisted human reproduction, it can’t be accused of rushing the issue.

Louise Brown, famously the world’s first “test tube baby”, born using the technique of in vitro fertilisation, is now a 36-year-old and a mother herself.

Sweden banned anonymous sperm donation as far back as 1980.

In Ireland, it is 10 years since the Commission on Assisted Human Reproduction called for new laws to govern practice in an area of great ethical complexity.

Successive governments promised legislation but nothing materialised; the present administration’s commitment is already four years old and dates back to when the programme for government was drawn up.

So Minister for Health Leo Varadkar deserves credit for this first step towards much-needed regulation.

On the debit side, it is doubtful whether the Bill will make it through the Oireachtas in the year or so left of the Government’s term. Issues of surrogacy; embryo, egg and sperm donation; and related research are complex and contentious, so extensive consultation will be needed.

Legal vacuum

Few will quibble with the Minister’s desire to end the legal vacuum and bring clarity to the area or his stated objective of prioritising the welfare of children.

But just how children’s interests are to be advanced is not the subject of a consensus. This fact was highlighted in last year’s Supreme Court decision in the case of twins born to a surrogate mother.

A registrar of births had refused to register the genetic mother as she was not the birth mother.

The High Court overturned this decision and said motherhood was based on genetic links; this reflected the position taken by the commission in its 2005 report.

But then the Supreme Court reversed this decision again and said the surrogate must be registered as the legal mother.

Commissioning parents

So the courts were split on the issue, as was the commission, and so are different countries – surrogacy is banned in France and Germany but is legal in other parts of the world.

In California, for example, surrogacy is legal and “commissioning parents” are readily provided with birth certificates rather than having to rely on post-birth adoption of children.

Overall, the details of Varadkar’s plans are scant at this stage, except in relation to surrogacy, as these provisions were originally intended to be part of the Children and Family Relationships Bill. Assuming no great changes have been made since there was consultation on the issue, this means surrogacy will require a genetic link to a parent and a ban on commercial surrogacy will apply.

The payment of reasonable expenses to the surrogate mother will be allowed, however.

Parents will not be allowed to choose the sex of their child, except when this is required in order to minimise the risk of genetically inherited disease.

The wide divergence in laws and practice around the world has spawned the growth of “fertility tourism” and, often, legal minefields in relation to the parentage of children conceived with assisted reproductive technology and their right to know about their genetic parents.

Nothing in any Irish law will have any impact on what happens abroad but, as UCC law lecturer Deirdre Madden has suggested, the State could put in place a facility to provide help for people who have made fertility arrangements overseas.