Bill marks first step in grappling with surrogacy
Much work still needs to be done to ensure that the provisions of the proposed Bill meet its objectives
The new Children and Family Relationships Bill aimed at “creating a legal structure to underpin diverse parenting situations” is a welcome step, but is long overdue
All children, irrespective of the method of their conception, have a right to clear rules on parentage so that their family life is acknowledged and cherished equally by the State. For children who have been born through assisted reproduction using donated gametes or surrogacy, this right has been frustrated by the lack of legislation on parentage despite clear recommendations from the Commission on Assisted Human Reproduction in 2005 and numerous judicial decisions urging legislative action.
Last week Minister for Justice Alan Shatter published the general scheme of a new Children and Family Relationships Bill aimed at “creating a legal structure to underpin diverse parenting situations and provide legal clarity on parental rights and duties in diverse family forms”. This is a very welcome development which is long overdue.
The most important issue for families in assisted reproduction, apart from the birth of their healthy child, is to have clarity about their legal situation. In this respect, the underpinning policy of the Bill to ensure that the child will have a clear legal relationship with its parents is laudable and should be strongly supported.
The basic premise of the provisions for dealing with parentage in assisted reproduction is that irrespective of genetic relatedness, the woman who gives birth to a child will be regarded as its legal mother.
Other than in surrogacy, the birth mother’s husband, civil partner or cohabitant is considered to be the other parent of the child if he or she has given valid consent. If there has been either egg or sperm donation involved, the donors will not be regarded as legal parents. This is a sensible policy, in keeping with international practice and consistent with the intention of all parties involved in anonymous donation where the donor has waived parental rights and responsibilities.
Unfortunately however, nothing is said about the child’s right to discover the identity of the donor, which is an important human right worthy of legal protection and which other jurisdictions have enshrined in legislation in recent years.
One provision which may cause some debate relates to posthumous reproduction, as the heads of Bill state that the consent of an intended parent is not valid after their death. This means, for example, that where a man has stored sperm prior to cancer treatment and specifically intends that his partner should be able to use it in the event of his death, his explicit consent and wish to become a father is not respected. Although there are legal and ethical issues involved, posthumous reproduction is permitted in many other jurisdictions if there is clear and unambiguous written consent from the deceased person and subject to time limits in order to facilitate the administration of the deceased person’s estate.