The general scheme of the Children and Family Relationships Bill 2014 is laudable in that, among its many family law reform-oriented aims, it seeks to regulate parentage where a child is born via assisted human reproduction.
Essentially, the commissioning couple (whether opposite-sex or same-sex), will be regarded as the child’s parents, provided that certain criteria are fulfilled under the proposed legislation.
However, it does not contain any provision enabling a child born via assisted reproduction to acquire details about its biological parents on reaching age 18, even though in its 2005 report the Commission on Assisted Human Reproduction recommended donor-conceived children should on maturity “be able to identify the donors involved”.
In order to enable this right of a donor-conceived child to be enforced on maturity, an increasing number of countries have enacted laws prohibiting anonymous donation of sperm.
In the UK, a change in the law occurred on April 1st, 2005, prohibiting anonymous donation of sperm and consequently children born via assisted reproduction after that date have the right to obtain non-identifying information about their donor at age 16, and identifying information, such as the donor’s name and address, at 18.
Collecting and registering
The Human Fertilisation and Embryology Authority is responsible for collecting and registering relevant information about donors from the UK fertility clinics and it will release such information to a donor-conceived child.
However, we should not be too critical of the failure of the Oireachtas to include a similar provision in the general scheme of the Children and Family Relationships Bill 2014 given there is no sperm bank in Ireland and the sperm used in clinics here is imported from countries such as Spain, where anonymity is guaranteed.
This presents a significant difficulty when trying to ensure the child’s right to knowledge of its biological identity.
Without a national bank and given the use of imported sperm from countries that permit anonymous donation, how could Ireland establish a donor-conceived register that would enable identifying information about the sperm donor to be accessed by the child when he or she turns 18?
So, there is arguably a pragmatic reason why the general scheme of the new Bill does not contain any provision vindicating the child’s right to know his/her biological identity in the context of assisted reproduction: because current practice in this area makes it virtually impossible to guarantee this right.
This is unfortunate in a country where the people voted to insert express protection for children’s rights into the Constitution in 2012. In addition, both the Supreme Court and the European Court of Human Rights have recognised the importance to a child of accessing information about her/his biological identity.
Recent studies on donor offspring have revealed that an overwhelming number of donor-conceived individuals want information not only in relation to their donor, but also regarding any half-siblings that they might have.
Identifying information about one’s genetic parents can be essential to the mental health of individuals who have been donor-conceived.
If an Irish sperm bank were set up, the constitutional rights of the child and, indeed, best practice, would arguably preclude any anonymous donation of sperm.
This denial of donor anonymity, coupled with the establishment of a donor-conceived register, might discourage sperm donation and lead to a shortage of sperm donors in Ireland. This occurred in the Netherlands and Norway when they removed anonymity.
Nonetheless, even if there was a shortage of sperm donation as a result of all this, surely this outcome would be more acceptable than current clinical practice, whereby we are creating individuals who will never be able to know their biological parents.
Brian Tobin is a lecturer at the School of Law, NUI Galway