5th Mar, 2015
The Children and Family Relationships Bill has not dealt with legal parenthood after surrogacy but only after donor conception. The proposed legislation has therefore failed to deliver on the very problem which originally prompted its inception (though it is now understood that surrogacy will be dealt with in a separate bill next year). It is also attempting to introduce coercive restrictions governing egg and sperm donation which would infringe the fundamental rights of subfertile couples to privacy and autonomy with regard to the reproductive choices they make and how they rear their children.
The fundamental problem for many subfertile couples is poor egg quality, most often the result of advancing age. Assisted Reproduction (AR) treatments have only a limited ability to compensate for this problem and many such couples are unable to achieve a pregnancy without egg donation. Egg donation is a wonderful application of IVF treatment which brings joy and fulfilment into the lives of many couples who would otherwise have remained childless. The availability of donor eggs in many European countries has been limited for decades by a reluctance to financially compensate donors (who must undergo at least two weeks of daily injections followed by an egg collection procedure). ‘Reproductive Tourism’ has resulted with couples travelling to other jurisdictions (particularly Spain, the Czech Republic and the USA) where donor eggs are more readily available. More recently, common sense has started to prevail and in 2011 the UK (previously a vociferous opponent of any remuneration) relaxed its rules and now permits a payment per donation which is remarkably similar to that which obtains in Spain. Attitudes relating to the anonymity or identifiability of donors also vary hugely across different jurisdictions. Spain and the Czech Republic enforce anonymity, the UK enforces identifiability, while the USA allows either.
A National Donor-Conceived Person Register is to be set up and the personal details of every couple who have a donor conceived baby must be entered in that Register, together with the personal details of their children. The State will do its utmost to make donor conceived children aware of their genetic origins by informing those children (often against the wishes of their parents) that they were conceived through the use of donor egg and sperm when they apply for a birth certificate at age 18 or older.
The belief that a donor conceived child has a right to identify and meet the donor which supercedes the rights of the parents to autonomy and privacy is obviously arbitrary. It is also the case that a very detailed set of information (medical and otherwise) about an anonymous donor can and should be made available. I am neither for nor against donor anonymity because both positions are acceptable. I am totally opposed to the State intervening in decisions about donor anonymity. Both donors and recipients should be allowed opt for either anonymous or identifiable donation as they see fit. In short, I am for choice.
The belief that every child has a right to be cherished and to a conception which is intended (rather than accidental) is easier to support. It could be argued that donor conceived children enjoy these rights which are denied to a large proportion of their naturally conceived peers. The portrayal of the donor conceived child as potentially disadvantaged and requiring State protection from its parents is as offensive as it is ridiculous.
More than one thousand Irish couples undergo egg donation treatment annually, almost exclusively abroad and in jurisdictions where donor anonymity is mandatory. Will the State ban such treatment and criminalise the couples concerned together with the doctors who care for them (maximum fine €70,000, maximum jail sentence two years)?
The proposed piecemeal AR legislation is unacceptably proscriptive. The Register it proposes represents an intolerable intrusion into the lives of subfertile couples and stigmatises them and their children. Such a Register would, in practice, be hopelessly incomplete as the great majority of egg donation couples would continue to seek anonymous treatment abroad which is surely their right. I am appealing to the Oireachtas, on behalf of my patients, to reject this AR legislation. A lengthy and comprehensive consultation process should then be initiated before attempting to draft comprehensive legislation to regulate Assisted Reproduction. This consultation process should seek the views of the patients whose lives will be impacted by legislation and the doctors, nurses and scientists who care for them. It should also seek the views of experts from outside the State with experience of regulatory systems which appear exemplary. Such viewpoints have not been sought thus far. Having waited so long for assisted reproduction legislation, surely we should take as long as is necessary to develop a satisfactory system.