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Legislating for assisted conception in Ireland

9 March 2015
By Fiona Duffy
Partner in Patrick F O'Reilly & Co Solicitors, Dublin
Appeared in BioNews 793

According to a recent press release from the Department of Health, the Irish Government is finally going to legislate for 'Assisted Human Reproduction and associated research'. I say finally because it is now ten years since the Commission on Assisted Human Reproduction advised on regulating assisted conception, including surrogacy. Despite the various recommendations contained in that report, the legislative position has remained unchanged.

Apart from the Medical Council's ethical guidelines and the EU Tissues Directives, assisted conception in Ireland has essentially been practiced in a regulatory vacuum without legislative controls. On more than one occasion, the Supreme Court has been called on to determine issues that may not otherwise have been a concern if adequate statutory provisions were in place.

The most recent case before the court, MR and DR, (reported in BioNews 779) was the last straw. In response, two Government departments, Justice and Health, have each taken action, but instead of dealing with all assisted conception matters in one single piece of legislation, it now appears that we are going to have two separate Acts.

One - The Children and Family Relationships Bill - published in February 2015, will, amongst other things, deal with parentage issues for donor conceived children. It also contains provisions to ban the anonymous donation of gametes. The Bill is moving through the Dail with undue haste, and the Government wishes to have it the Statue books before the proposed referendum on same sex marriage in May 2015.

The other is yet to be published and intends to provide a legal framework for the practice of assisted conception generally, including embryo and gamete donation, as well as surrogacy and associated parentage issues.

There is no doubt that those involved in the industry welcome the introduction of a regulatory framework, but they are equally anxious that notwithstanding the intention to consult with interested parties, the legislation will not be too restrictive and place too many obstacles in the way of making the system workable for them.

The proposed banning of commercial surrogacy and anonymous donation raises a concern that rather than achieving the intended aim of legislation, it could be in direct conflict. In a letter to TDs and Senators, the Institute of Obstetricians and Gynaecologists has expressed a concern that a ban on anonymous donation will cause legal uncertainties for doctors and 'drive donor conception underground'. The banning of commercial surrogacy could have the same result.

It is proposed that assisted conception services will be available to everyone irrespective of, gender, marital status or sexual orientation.

However, Ireland is a very small county with a population of less than five million. Apart from a family member, finding a woman to act as a surrogate may be nigh on impossible leaving no option but to go abroad. Also donation, anonymous or otherwise, within such a limited gene pool may not be ideal.

It is also proposed to legislate for human embryonic stem cell (hESC) research, which in this jurisdiction has been a bit of a taboo subject. Notwithstanding there is a tacit acceptance that it is being conducted, as with assisted conception, there is no independent regulation. The proposal to regulate for hESC research, even in limited circumstances, is a very brave and forward-thinking step.

Medical science has galloped ahead of the law and over the years, rather than publicly acknowledge such activities, there has been a remarkable failure on the part of Government to take any positive action through legislation or regulation.

The intention to invite submissions from interested parties and to hold extensive public consultations will produce many varied and opposing opinions. Hopefully common sense and an acceptance of the need to move forward in a positive way will win the day.

SOURCES & REFERENCES
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