Despite the lack of legislation and a regulatory framework in assisted conception, fertility treatment has been widely available in Ireland for many years. But in the absence of legislation, fertility clinics will not provide surrogacy services and many Irish couples requiring the use of a surrogate have, as a result, gone abroad. In the vast majority of cases a foreign surrogate has been used and the child is born abroad. Very rarely, however, an Irish family member has acted as a surrogate and the child is born in this jurisdiction.
One such birth ended up being the subject of High Court proceedings last year (1). The court held that a woman who was genetically related to the child, but was not the birth mother, was the legal mother of the child. This decision could have significant implications for assisted conception generally and, in particular, for gamete donors who might be left concerned about the prospect of being considered legal parents. The State was left with no option but to appeal the decision, which was heard last week before a seven-judge Supreme Court. The judgment has been reserved for a later date.
On 31 January 2014 the Minister for Justice and Equality, Alan Shatter, published a document with a view to it forming the basis of a consultation process to be undertaken by a Joint Oireachtas committee (2). The committee has sought submissions from interested parties and is tasked with reporting back by Easter. The deadline for submissions is 28 February 2014.
In essence, the proposals intend to deal with complex modern family structures and relationships generally but, and of more interest to this forum, is the inclusion of proposals intended to provide legal clarity on the parentage of children born through assisted conception and surrogacy.
Irish law currently regards the birth mother as the mother and there is no mechanism in place whereby any other woman can in law be regarded as the mother, irrespective of whether she is genetically related to the child. This has left many children in a legal vacuum both in terms of parentage and inheritance.
It proposes a framework for determining parentage following the use of assisted conception and surrogacy. Specifically, it proposes:
- to dispose of the long established presumption of paternity in favour of the woman's husband. For the first time ever, it proposes to acknowledge the paternity of a cohabitee;
- that a person who donates gametes shall not, by reason only of such donation, be a parent of the resultant child;
- that a person who is married to, or in a civil partnership with, or co-habiting with a surrogate at the time she conceives a child by assisted conception is not a parent of that child. This will remove an extra layer of bureaucracy for the intended couple when attempting to establish the parentage of a child and is to be welcomed;
- that the court can make a declaration that a surrogate is not a parent of a child born to her. This is to be welcomed as it will operate to conclusively rule out any future relationship with the surrogate mother.
The consent of the surrogate will be required in making an application for the assignment of parentage, although there is some leeway in circumstances where she cannot be located, or is deceased.
A surrogacy arrangement cannot be enforced by, or against, any person making it except in limited circumstances, such as against the intended parents to enforce reimbursement of reasonable costs associated with the surrogacy. Nor can it be used as evidence of the consent of the surrogate to give birth to a child for the purposes of relinquishing the child on birth.
Commercial surrogacy is to be prohibited. The introduction of such provision could close off access to surrogacy in countries such as India and the Ukraine, in circumstances where very few women are prepared to offer to carry a child for someone for altruistic or non-commercial purposes.
In a country that is regarded as traditional right-wing Catholic, this is indeed a very brave and forward thinking proposal for legislation. It has, however, taken almost ten years since the Government-appointed Commission on Assisted Human Reproduction report in 2005 to get this far (3).
While this Government has been forced into taking action, I believe that there is a genuine will on its part and on the part of the Minister for Justice and Equality to legislate. The consultation process will no doubt produce many diverse views for consideration that might ultimately influence the draftsman. But that is only the first step. Hopefully the momentum will be kept up and the ultimate legislation will cater for all requirements.