29 January 2018
Partner, Patrick F O'Reilly & Co. Solicitors, DublinAppeared in BioNews 935
The Minister for Health in Ireland on the 3 October 2017 disclosed a decision by Government to approve the drafting of a bill on assisted human reproduction (AHR) and associated research. Three days later a general scheme of the Assisted Human Reproduction Bill 2017 was published. This month, the bill went to Ireland’s Oireachtas health committee for scrutiny (see BioNews 934), after which it will go back to the Irish government for a final bill to be drafted. This is very exciting as it will be the first legislation in Ireland on assisted reproduction: setting up a legislative and regulatory structure under which the practice of AHR may operate.
The legislation is very comprehensive and forward-thinking in many respects. That said, I am disappointed with the proposals in relation to surrogacy: if enacted, the law could significantly impact access to surrogacy for many Irish couples.
Proposals considered in 2014 resulted in the Children and Family Relationships Act 2015. While proposals for the reassignment of legal parentage in surrogacy cases were made, no such provisions made it into the final version of the act. Proposals relating to donor conception did make it into the act but have not yet been brought into force. Notwithstanding, I am reasonably optimistic that the new AHR legislation and regulation will be put in place.
So what is different now? Well, there is a changed mood. It is accepted that infertility and subfertility are on the rise. Public opinion would be supportive of such legislation. We have an interested young population whose voices are heard and we have a Government that is willing to tackle conservative thinking in many areas such as this.
According to the Chief Medical Officer for the Department of Health, the number of fertility cycles for AHR procedures in Ireland had risen to almost 9000 in 2016. This figure is likely to continue to rise. The time has come for the Government to deal with the issues.
While it also contains provision for legalising surrogacy in Ireland, these proposals are in my view worryingly restrictive. The legislation proposes that only altruistic surrogacy which takes place in Ireland will be permitted. Such surrogacy arrangements will need to gain the prior approval of the regulatory authority.
I am also perturbed to see the proposal that the provision of any technical, medical or professional service (including legal advice) which would help to facilitate any other surrogacy – e.g. foreign or commercial surrogacy – be prohibited.
The penalties for a contravention of this section are substantial, including a fine not exceeding €100,000, imprisonment for up to five years, or both.
This is in contrast to the 2014 report of the Joint Committee on Justice, Defence and Equality which concluded that no sanction should be imposed on parents for breach of the surrogacy provisions proposed in the 2014 bill as it was felt that such penalties would be against the interests of the child. My hope is that the penalty provisions would be revisited and that the proposed prohibition on the provision of advice either medical or legal, be removed.
I am very sorry to note that no provision for transfer of legal parenthood in cases of surrogacy is contemplated in the current scheme. This is a missed opportunity. There are many children in Ireland born through surrogacy arrangements living with a male parent, recognised under Irish law, and a second adult whose relationship with the child is not recognised - even if that person is biologically related to the child. My hope is that the legislation would contain appropriate provisions for the retrospective transfer of legal parentage for children already born through surrogacy.
So what are my hopes and dreams for the bill in general? I hope that inclusive and forward-thinking legislation will be put in place and that the practice of AHR will be properly regulated. For too long our fertility clinics in Ireland have had to practice in what was essentially a legal lacuna.
I hope that the proposed regulatory authority will be set up and will be operational in a very short period of time. Many of the provisions contained in this legislation are contingent on the establishment of such an authority. And I hope that the section on surrogacy will be re-visited and that access to surrogacy will be less restrictive.
I am pleased to note the provisions in relation to counselling contained in the scheme. Currently, there is no requirement that any person availing of AHR services in this jurisdiction is required to undergo counselling.
Alongside with this scheme the Department of Health has indicated an intention to provide public funding for couples needing to avail of AHR services. My hope is that public funding would be made available to assist couples with fertility issues.
Apart from my concerns relating to the surrogacy proposals, in general, the scheme contains more than I ever expected. I understand that this piece of legislation may not be on the legislative programme before the summer recess, but I hope that the draftsmen will get to work on the bill and that we might expect to see legislation in place at least by this time next year.