Urgent need for laws on assisted human reproduction
Irish law fails to keep up with the science of human reproduction
Frozen storage at sperm bank: Irish law has failed to keep up with scientific progress in human reproduction
Earlier this month, the Supreme Court handed down judgment in a landmark case concerning the legal motherhood of a child born through a surrogacy arrangement. While the High Court seemed willing to stretch existing laws to accommodate this novel situation, and suggested that the Constitution required it to do so, the Supreme Court took the opposite view.
It found that Irish law had failed to keep up with scientific progress in human reproduction and that in the absence of specific legislation, the courts could do nothing to remedy that failure.
The case, MR vs An t-Árd Chláraitheoir, involved an agreement between two sisters. One sister (the genetic mother) suffered from a medical condition that meant that while she could produce eggs, she could not carry a pregnancy to term.
Her sister (the gestational mother), who already had children of her own, agreed to carry the pregnancy as a surrogate. In contrast to recent reports of surrogacy arrangements that ended in disaster, this agreement worked precisely as planned.
The gestational mother gave birth to twins and handed them over to the genetic parents. The only damper on an otherwise happy ending was the fact that, according to the chief registrar, legal motherhood could only be attributed to the woman who gave birth to a child, whatever that child’s genetic makeup. The genetic mother and father challenged the absolute nature of this rule.
The Supreme Court bluntly acknowledged that Irish law was woefully inadequate in failing to provide for familial relationships arising from surrogacy and other forms of assisted reproduction.
Mr Justice Adrian Hardiman vividly described this legislative inertia as akin to a situation where “road traffic law had failed to reflect the advent of the motor car”. Although sympathetic to the plight of the genetic parents, the Supreme Court found that it would be wholly inappropriate for the courts to try and fill that vacuum.
Regulating assisted reproduction was the job of the Oireachtas, it said, and although subject to the Constitution, the job of the Oireachtas alone.
This is not the first time that the court has admonished the legislature for a failure to regulate assisted reproduction. It did so in the case of Roche vs Roche in 2009, when the Supreme Court criticised the legislature for failing to make any provision for legal protection of the human embryo. Now, five years later, the court’s disapproval has grown even more pronounced.
After MR vs An t-Árd Chláraitheoir, the message from the Supreme Court is abundantly clear: Irish law is inadequate to deal with the novel relationships created by assisted reproduction, and it is the job of the Oireachtas to fix that. In many ways, this is a laudable approach.
Assisted reproduction is an immensely complex issue, involving various actors and weighty value judgments. A proper scheme of regulation would require a level of detail that is far beyond the competence of the courts. However, the Supreme Court’s admirable deference depends on the willingness of the Oireachtas to perform its lawmaking role.
It is no great revelation to say that legislation on assisted human reproduction is urgently needed. Legislation was urgently needed in 2005 when the Commission on Assisted Human Reproduction produced its report.
The publication of the Heads of a Children and Family Relationships Bill 2013 indicated some inclination to deal with this subject. The scheme of the Bill does not, however, present a comprehensive scheme of regulation for assisted reproduction and, although originally included, surrogacy was removed from recent drafts. The reason for this is unclear – perhaps it was felt that surrogacy was challenging enough to warrant its own piece of legislation.
It must be recognised that novel family relationships constitute only one aspect of the broader subject that needs to be addressed. Developments in assisted human reproduction have facilitated a myriad of new fertility practices that are largely unregulated in Ireland.
For example, Irish law makes no provision for the disposition or disposal of frozen embryos.
As a result, there are hundreds, or possibly thousands, of cryopreserved embryos in storage in Irish clinics, stranded in a legal limbo. The use of pre-implantation genetic diagnosis (commonly known as embryo screening) is similarly unregulated. These and other related activities take place in Irish fertility clinics every day and badly need a proper legal framework.
This month’s judgment demonstrates not just the need for legislation on surrogacy, but for legislation on assisted human reproduction more generally. Which is not to say, necessarily, that the business of legislating for assisted reproduction will be easy. Assisted reproduction engages core human values and interests, and is subject to widely varying legal regimes across Europe.
Legislating means making difficult, important policy choices. Those choices need to be made through a process of reasoned, respectful, public deliberation. It is time for the Oireachtas to set that process in train.
Andrea Mulligan is a barrister and adjunct lecturer in medical law and bioethics at the School of Law, Trinity College Dublin