THE DONATION of sperm, ovums and embryos should be permitted for use by infertile couples, and the intent of all involved should be the basis for the assignment of legal parentage, according to a family law expert.
Geoffrey Shannon was speaking at a conference of the Association for Child and Adolescent Mental Health yesterday, where he outlined the legal problems that exist for children born through some assisted human reproduction technologies (ARTs).
He pointed out that there was no legislative framework for surrogacy arrangements in Ireland, and there would be strong public policy reasons why such arrangements would not be enforceable. If a child was born through a surrogacy arrangement, the normal legal principles would apply, he said. The birth mother is, at birth, the legal guardian of the child, and, if there is a legal and subsisting marriage at the time, the husband is the father. However, this presumption is rebuttable.
He pointed out payment for adoption is prohibited under the Adoption Act 1952. Surrogacy arrangements would be likely to fall foul of this Act if they contemplated payment from the intended parents to the surrogate. Such payment could also undermine the validity of the natural mother to the adoption.
Referring to ARTs where donated genetic material is involved, he said: "In any society, it is vital to have a clear definition and no uncertainty as to who 'parent' and 'child' definitively are. The possibility of multiple parentage has huge ramifications for succession law, administration of estates, domicile and citizenship, adoption and the registration of births with the ARTs."
He pointed out that the concept of motherhood had been redefined with the advent of ARTs, and it was now possible to have three "mothers", all of whom may be unrelated or even unknown to each other - the genetic mother who supplies the egg; the surrogate mother who carries the child and the social mother who rears it.
In Ireland, there would be particular problems, as private adoption is illegal unless the prospective adoptive parents are close relatives of the child. Otherwise, adoptions must take place through the HSE. If the surrogate mother is married, her husband would be legally presumed to be the father and the adoption of the child of married parents is only possible under very limited circumstances.
The legal parentage of a child where posthumous conception took place would also be questionable, he said. The Succession Act 1965, does not recognise a child born more than 10 months after the death of its father, and such a child could be presumed to be legally "fatherless", as opposed to a non-marital child. Mr Shannon pointed out that earlier this year the High Court recognised the rights of a lesbian couple and the child born through sperm donation as those of a "de facto family". "This case does much to highlight the present constitutional and statutory void regarding same-sex, de facto family units," he said.
He pointed out that the report of the Commission on Assisted Human Reproduction had not been implemented, and urged that its recommendations on the setting up of a statutory body to regulate it, and the permitting of donation of genetic material, be proceeded with. Referring to issues concerning children's consent to medical treatment, he said no guidelines existed as to how doctors should weigh up the interests of the child, the parents wishes' and the doctors' medical opinion.
The Council of Europe's Convention on Human Rights and Biomedicine spelled out conditions under which organ and tissue donation by children was permissible, but Ireland had not signed this convention, and there was no protection for minors unable to consent to this.