Is Fertility Law in Ireland Set to Change?

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I reflect with sadness on the slow pace of progress in legislating for assisted human reproduction (AHR) in Ireland. This is all the more poignant when I read the good news coming from France and the recent court decisions on the recognition of parentage for children born through surrogacy.

Under current Irish law, only a male who is biologically related to a child born through surrogacy can establish a legal relationship with the child. The second intended parent can, after two years of living with the child and parent, apply to be appointed as a guardian. Guardianship ceases when the child is 18. There is also the possibility of becoming a legal parent through a step-parent adoption application. However, the Adoption Authority of Ireland has not to my knowledge made step-parent adoption orders in circumstances where the child was conceived through AHR.

A General Scheme of the Assisted Human Reproduction Bill was published in 2017, and was followed by public consultation and a report in July 2019. It is anticipated that the corresponding Act, when published, will contain legislation regulating surrogacy arrangements that take place in Ireland. The draft does not contain any provision for the recognition of parentage in a foreign surrogacy arrangement, nor for the retrospective recognition of parentage for Irish children already born through surrogacy, leaving them in legal limbo. 

Recently it was reported that the Government’s Special Rapporteur on Child Protection, Dr Conor O’Mahony, was asked to review issues relating to the parentage of children born to LGBT families using donor assisted technologies, including surrogacy, and the legal position of their parents. With our forthcoming general election, it is not clear whether this review will proceed.

The Children and Family Relationships Act 2015 (CFRA) came into force in 2015, except parts 2 and 3, which will take effect on 4th May this year. These sections deal specifically with donor assisted human reproduction (DAHR) and the parentage of children born through donor conception, excluding surrogacy. This is the first piece of Irish legislation dealing with donor conception and it is far from perfect.

In the five years since the act was passed, there has been much change in this country. 2015 alone saw the referendum on same-sex marriage resulting in the Marriage Act of 2015, which legalised such unions, and the Gender Recognition Act 2015. As a result of intervening legislation and the lapse of time since enactment, the CFRA has already undergone several amendments.

Parts 2 and 3 of the CRFA are cumbersome and far from perfect. 

Providing all the relevant consents and declarations have been put in place and the procedure has been carried out in an Irish DAHR facility (fertility clinic), after 4th May 2020, for the first time in Ireland, it will be possible for a second female to be registered as a parent of a child.

A donor is defined as someone who provides a gamete for use in a DAHR procedure and who does not wish to be a parent. The act lays down a list of steps that must be complied with, including checks and consent procedures and an acknowledgement of the possibility of being contacted by the child after the child reaches 18. The donation must be a known donation. 

There is one serious omission, which is a great cause of concern in the LGBT community. Some female couples choose to have one partner provide the egg, and the other carries the pregnancy as a way to both having an enhanced connection to their child (sometimes called ‘shared motherhood IVF’). This may be prevented by the legislation, as the egg-providing mother is not a ‘donor’ as defined by the act: one who does not want to be a legal parent. By contrast, the provision of sperm by a husband for use by his spouse is not classified as a donation. Irish law contains a presumption of parentage in favour of the husband.  

The legislation will also allow retrospective recognition of the parentage of a child born to a female couple prior to 4th May 2020. Again, there are very strict conditions to be met: the child must have been born in the Republic of Ireland, the procedure must have taken place in a fertility clinic where such procedures are legal, and the donor must have been unknown and remain unknown at the time the court application is made. Unfortunately, there are very few couples who satisfy all the criteria.

Finally, there is the thorny question of the future for gametes currently in storage in Irish fertility clinics. There is a three-year window for the use of gametes obtained prior to 4th May 2020 subject to certain conditions, the most important of which is that the intending parent is already the parent of a child born through donor conception and the gamete to be used is from the same donor and will provide that first child with a sibling. There is no time limit for the use of embryos in storage.

A lot more work is required and while the current Minister for Health has taken a very active interest in this area the government is now at an end. We are going to the polls in less than a weeks’ time. There is no knowing what attitude the incoming government will take to matters such as this or indeed whether legislating for and regulating fertility treatment in this jurisdiction will even be on their radar.

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