Assisted Reproductive Technologies and Irish Law

Who’s left holding the baby now? Assisted Reproductive Technologies and Irish Law

by Sarah Pryor

The rapid rate of development and expansion in usability of genetic technologies in the past decade is both a cause for celebration and a cause for concern.

There is an impetus on law and policy makers to act responsibly in creating and implementing legal tools to aid in the smooth operation and integration of these technological advances into society in order to mitigate the possibility of society enduring any negative impact from the existence and use of technologies in this growing area.

The question asked here is; do assistive reproduction technologies challenge the traditional concepts of parenthood generally, and motherhood specifically, and what impact does this have on Irish law and society?

Quite simply put, the answer is yes, these emerging technologies do challenge traditional familial concepts and norms. The answer as to what impact this has on Irish law and society is exceedingly more complicated.

Ethical concerns

Reproduction is becoming increasingly more medicalised, geneticised and commercialised. This has the potential to diminish the human condition and damage the human population.[1] In a time of scientific, social and legal change it is inevitable that there will be periods of uncertainty. It is under these conditions of uncertainty that identity and ethics must be debated, and boundaries must be established in order to ensure that no negative experiences come to the broader population due to the advancements being made in the area of assisted reproduction.

The ethical concerns surrounding the increased medicalisation of human reproduction range greatly.[2]

The most challenging element of reproductive technologies is the fact that the issues being debated are deeply personal and sensitive, meaning that no one experience is the same and as such, there is difficulty in establishing a standard of practice, as well as a legally and ethically balanced acceptance of the use of these procedures. These difficulties are inherent to discussion surrounding human reproduction.

Assisted Human Reproduction in Ireland

Assisted Human Reproduction (AHR) was not formally recognised as an area in need of governmental oversight until the year 2000 when the Commission for Assisted Human Reproduction, herein referred to as ‘the Commission’, was established and the need for comprehensive, stand alone, legislation in this area was recognised.[3]

The Commission and subsequent report were welcomed as a move towards the recognition of a set of newly emerging social norms in Ireland; both in terms of medicine and reproductive technologies and also in terms of the traditional nuclear family and the growth towards new familial norms. However, following the publication of the 2005 report there was little done in the way of proactive implementation of the set out recommendations.[4]

Political conversation centres around the disappointment that questions surrounding the protocol of AHR services and their use must be addressed via judicial channels and that there is not legislation in place to counteract the need to use the Irish Court System to get answers.[5]

The lack of legislation in this area means that the only avenue for the guidance of medical practitioners comes from the Irish Medical Council “Guide to Professional Conduct and Ethics for registered medical practitioners”.[6] Several cases in recent years have been brought to the High Court and Supreme Court in order to solve the maze this legal vacuum leaves patients struggling through.[7] These cases, as recently as 2014, have highlighted the necessity for legislation in the area in order to protect all parties involved.

The role of religion

It is important to recognise the cultural history of Ireland and the importance of the social and political role of the Catholic Church for many years. Older Irish generations were reared in a country in which contraception was illegal and women did not work once they were married as their societal role was in the home. Newly emerging technologies, such as surrogacy, further challenge these traditional values.

There is an unfortunate pattern of political and religious control over a woman’s right to reproduce and the conditions in which it is ‘right’ for a woman to have a baby. For a long time in Ireland, there was no real separation of church and State. The ramifications of this have rippled throughout Irish history and up to the present day – no more so than in the area of the reproductive rights of women.

Parallels with the Repeal the 8th campaign 

Although distinctly different from the abortion debate, and the argument for the repeal of the 8th amendment, certain parallels can be drawn in how the government has responded to calls from various groups to provide guidance in the area of assisted reproduction and how these calls have been largely brushed to the side. On the introduction of the Children and Family Relationships Act 2015, Minister for Justice & Equality Francis Fitzgerald removed any reference to surrogacy because it was too large an issue to merely be a feature of a more generalised bill, so there is indication that positive movements are being made in this area – the question is when will they actually be formulated into real, working policies, laws and protocols?

ARTs and the Marriage Equality referendum

Until 2015, marriage in Ireland was exclusively available for heterosexual couples. The 34th Amendment of the Irish Constitution changed this, effectively providing for a more equal society in which traditional Irish values towards marriage were replaced with a more accepting stance, something which was voted for by the Irish public through a referendum.[8]

The gravity of such a change in Irish society has implications beyond just marriage. Laws regarding areas such as adoption were relevant only to the married couple and, within that context, this meant only heterosexual couples. Irish family law was written with the traditional ‘mother, father and children’ family in mind. It is fair to say that family dynamics have changed significantly, and the movement away from traditional concepts of family is increasing. With the passing of the Marriage Referendum, marriage in the context of law and society has taken on a new meaning, and the symbolic nature of this recognition of a new familial norm is plain to see. The Irish electorate voted for this, and public consultations on Assisted Reproductive Technologies (ARTs) have illustrated the support of the Irish people for ARTs, and for legislation regulating their use – and yet, still there is none.

ARTs are used by heterosexual and homosexual couples alike. The Children and Family Relationships Act 2015 has made movements towards acknowledging new familial norms in Ireland and was a welcomed symbol of the future for Irish society as increasingly liberal and accepting. Although many pressing issues are not addressed within the Act, such as surrogacy, the support for the enactment of new measures regarding familial relationships is a deeply reassuring acknowledgement of the changing, evolving nature of Irish society and their views towards non-traditional family units. While this is to be welcomed, it simply doesn’t go far enough.

The role of the mother

One area that has not been addressed in any significant way is the greatly changed role of the mother.

Mater semper certa est – the mother is always certain. This is the basis on which Irish family law operates and it is this historical, unshakeable concept that is being shaken to its core by the emergence of ARTs.

Traditional concepts of motherhood are defined solely through the process of gestation.[9] A birth mother, in the context of Irish law, is the legal mother.[10] This has remained a point of contention in the Irish courts, demonstrated in the 2014 Supreme Court case addressing the rights of a surrogate mother to her genetically linked children to whom she did not give birth. Denham CJ addressed the ‘lacuna’ in Irish law, emphasising the responsibilities of the Oireachtas, in saying that:

“Any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas.”

Chief Justice Denham further stated that:

“There is a lacuna in the law as to certain rights, especially those of the children born in such circumstances. Such lacuna should be addressed in legislation and not by this Court. There is clearly merit in the legislature addressing this lacuna, and providing for retrospective situations of surrogacy.”[11]

The emergence of ARTs as common practice, particularly regarding egg and sperm donation, surrogacy and embryo donation, have created a new concept of parenthood, and more specifically motherhood.

There are deeply segregated emerging views over who exactly is the legal mother, and the social mother, the rights that each participant has, and who is responsible for the donor or surrogate child.

Whilst some of these issues were addressed in both the Commission Report and the 2013 RCSI Report, such as the right of the donor child to the information of their donor, neither delve deeply into the implications of such medical processes on concepts of motherhood and parenthood.

Three fragmented concepts of motherhood now exist; social, gestational and genetic.[12] Although there are established ideologies of parental pluralism within society regarding adoption, the nature of the situation in which a child is born though the use of ARTs is fundamentally different from an adoption agreement which is accounted for in Irish law.

Feminist views on ARTs

Feminist views differ greatly in their resounding opinions on the emergence of assistive reproduction technologies. Arguments are made opposing ARTs as methods of increased control over a woman’s reproduction through commercialisation and reinforcement of the pro-natalist ideologies.[13] Others argue in favour of ARTs in stating that their development allows women more freedom over their reproductive choices and enables women to bear children independently of another person and at a time that is suitable to her; an example of this being the use of IVF by a woman at a later stage in her life.[14]

These complexities exist before even considering the social and legal role of parents in same sex relationships – what relevance does the role of the mother have for a gay couple? What relevance does the role of a father have for a lesbian couple? Does the increasing norm of homosexual couples having children via surrogate mitigate any need for these socially constructed familial roles and highlight the irrelevance of these roles in modern society? The same questions can be asked of a single man or woman seeking to have a child via surrogate – should a person only have a child if they are in a committed relationship? Surely not, as single parents currently exist in Ireland, have done so for some time, and are raising their children without objection from society or the state.

‘The law can no longer function for its purpose’

Regardless of where one’s stance lies on the emergence of these technologies, it is undeniably clear that their use is challenging normative views and practices of parenthood. The traditional, socially established norms are shifting from what was once a quite linear and nuclear view. ARTs allow for those who previously could not have genetically linked children to do so via medical treatments. It is in this way that the situation under current Irish law is exacerbated, and the law can no longer function for its purpose.

Something needs to be done, so that whoever wants to be, can be left holding the baby!

[1] Sarah Franklin and Celia Roberts, Born and Made: An Ethnography of Preimplantation Genetic Diagnosis (Princeton University Press 2006).

[2] Sirpa Soini and others, ‘The Interact between Assisted Reproductive Technologies and Genetics: Technical, Social, Ethical and Legal Issues’ (2006) 14 European Journal of Human Genetics.

[3] David J Walsh and others, ‘Irish Public Opinion on Assisted Human Reproduction Services: Contemporary Assessments from a National Sample’.

[4] Deirdre Madden, ‘Delays over Surrogacy Has Led to Needless Suffering for Families’ Irish Independent (2013) <https://www.nexis.com/auth/bridge.do?rand=0.4949951547474648&gt; accessed 25 June 2016.

[5] Roche v. Roche 2009

See also, MR & DR v. An tArd Chlaraitheoir 2014

[6] David J Walsh and others, ‘Irish Public Opinion on Assisted Human Reproduction Services: Contemporary Assessments from a National Sample’.

[7] See Roche v. Roche 2009. See also MR & DR V. An tArd Chlaraitheoir 2014

[8] 34th amendment of the Constitution (Marriage Equality) Act 2015.

[9] Andrea E Stumpf, ‘Redefining Mother: A Legal Matrix for New Reproductive Technologies’ (1986) 96 The Yale Law Journal 187 <http://www.jstor.org/stable/pdf/796440.pdf?_=1471277905944&gt; accessed 16 June 2016.

[10] See, MR And DR v an t-ard-chláraitheoir & ors: Judgments & determinations: Courts service of Ireland [2014] IESC 60.  [S.C. no.263 of 2013]

[11] Ibid, para 113, para 116.

[12] SA Hammons, ‘Assisted Reproductive Technologies: Changing Conceptions of Motherhood?’ (2008) 23 Affilia 270 <http://claradoc.gpa.free.fr/doc/254.pdf&gt; accessed 4 August 2016.

[13] SA Hammons, ‘Assisted Reproductive Technologies: Changing Conceptions of Motherhood?’ (2008) 23 Affilia 270 <http://claradoc.gpa.free.fr/doc/254.pdf&gt; accessed 4 August 2016. See also, Gimenez, 1991, p.337

[14] See, Bennett, 2003 and Firestone, 1971

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