Can fertility treatment legislation keep pace with social change?

Legislation surrounding fertility treatment is the now the norm in Europe. However, in a world of rapidly evolving medicine, science and societal norms, legislation can appear rigid and slow to respond. Seemingly culturally liberal countries like Germany and France struggle with donor conception, while some European countries such as Italy, ban surrogacy of any kind (see BioNews 1178 and 1184).

Ireland has long been an outlier in Europe regarding fertility treatment legislation. In December 2021 the country was shamefully ranked 40 of 43 European nations, in the European Atlas of Fertility Treatment Policies, in large part because of our lack of legislation. Having worked in fertility in Ireland for some 25 years, I find it interesting to reflect on how the country has managed to provide fertility treatment in a 'legal vacuum', without any legislation to guide it or prohibit it. We have certainly not been oblivious to legislation. Since the turn of the century, we have had seven ministers for health, numerous working groups, reports and documents, several high profile High Court and Supreme Court cases, two referenda and umpteen empty promises regarding legislation in the field.

In 2000 the then minister for health established a Commission on Assisted Human Reproduction. This was a multidisciplinary group of medical and legal experts, scientists and ethicists and I was privileged to be a member. In 2005, the Commission produced 40 recommendations in its report, the first of which was the need for a regulatory authority for assisted human reproduction. We still await such a body. The general tone of the Commission's report was progressive, reflecting practices in legislation surrounding fertility treatment in the UK and liberal European countries at the time.

The Commission's report was welcomed and there was talk that legislation would be fast-tracked. However, there was also controversy about a recommendation that embryos should not attract legal protection until placed in the uterus. Many believed that embryos had a 'right to life' according to the 1983 amendment to the Irish Constitution - Article 40.3.3. or the eighth amendment. This acknowledged 'the right to life of the unborn'. The Irish Medical Council Guidelines at the time stated that 'any fertilised ovum must be used for normal implantation' and this led to some clinics not freezing surplus embryos but, rather, placing them in the vagina. This practice would be regarded as highly unethical today.  

Not surprisingly, given the lack of legislation, some couples resorted to the courts. The Roche vs Roche case involved a couple who had legally separated and who had frozen embryos. The female partner wished to use the embryos but the male did not. The case was heard in the High Court in 2006 and the Supreme Court in 2009. It was argued that the embryos had a right to life as per the Irish constitution. Both courts disagreed, decreeing that the term 'unborn' in Article 40.3.3 did not include in vitro embryos. This was good news for practitioners in the field, making way for better practice in the handling of embryos. This issue was finally closed in 2019 when the eighth amendment, which had also effectively banned abortion in the Republic of Ireland, was overwhelmingly repealed by a majority of 64 percent in a national referendum. Interestingly, debates around the question of 'when life begins' in relation to embryos created for IVF are now surfacing in the USA following the overturn of Roe vs Wade (see BioNews 1147).

Surrogacy cases have also reached the Irish courts. MR and DR were twins, born via domestic surrogacy where a woman acted as surrogate for her sister. In an effort to secure legal parentage of the twins, the intending mother challenged the State in the High Court in 2014. The judge deemed her to be the legal mother. While this was the desired outcome for this case, the judgement would have caused turmoil in donor conception cases. The Supreme Court reversed the High Court judgement, confirming that, in Irish law, Mater certa semper est, or the mother is always certain. This remains the case and in late 2022 another surrogacy case commenced in the High Court. This involves a couple with a son born via international surrogacy. The father is ill with cancer and the mother is seeking legal parentage of their son. The case has been put on hold pending surrogacy legislation (see BioNews 1163).

Ireland currently has one piece of fertility treatment-related legislation – the Children and Family Relationships Act 2015. This Act was required to modernise Irish law on parentage by legislating for non-marital and non-traditional relationships. Donor conception was included, but not surrogacy. The Bill moved very quickly through the legislative process and there were concerns among professionals in the sector that it was premature, given that we had no general legislation surrounding fertility treatment and no regulatory authority. However, other forces were at work – notably an impending referendum on same sex marriage. In May 2015, Ireland became the first country in the world to approve gay marriage by popular vote – so supportive legislation (including that on donor conception) was enacted one month prior, in April 2015. Was the 2015 Act rushed? Yes it was. It took another five years to actually commence the sections of the Act related to fertility treatment.

Today, in 2023, we still await general legislation to oversee the complex field of fertility treatment. Heads, or the first draft, of an Health (Assisted Human Reproduction) Bill (AHR Bill) were published in 2017. Those of us in the field responded with an opinion paper and spoke in Parliament at the Health Committee. Key areas which concerned us were age limits for treatment, counselling, compensation of donors, surrogacy and posthumous conception. The Joint Committee on Health produced its report on pre-legislative scrutiny of the Bill in July 2019. They agreed with most of our opinions but, sadly, many of these have not been incorporated into the AHR Bill, published in February 2022.

This AHR Bill 2022 has now passed to the third stage of the Parliamentary process and is awaiting further review and amendment in the Oireachtas, the Irish Houses of Parliament. Once again, other issues of societal interest have led to postponement. The AHR Bill 2022 provides for domestic but not international surrogacy. Following intense lobbying from affected individuals, it was decided in early 2022 to establish a Parliamentary Committee to advise on international surrogacy. The recommendations of this Committee are currently being reviewed with a view to incorporation into the AHR Bill 2022.

It is likely that the Irish AHR Bill will finally pass into law in 2023. Many parts of the current draft are still of major concern to practitioners in the field. These include proposed mandatory counselling for all accessing AHR (even heterosexual couples using own gametes) but no requirement for counselling prior to donation; the restriction of posthumous conception to women only and the transfer of parentage in all surrogacy cases, following rather than at birth.

Several sections of the Bill, drafted prior to 2017 are now medically and scientifically out of date (there is no mention of non-invasive pre-implantation genetic testing or of the cryopreservation and storage of gonadal tissue, for example.) Other sections are worded in such a way that they may have unforeseen and unintended consequences. In mid-2022, a large group of professionals in the sector submitted a position paper to Government. Our views concur with those of over 200 health professionals and over 1000 service users in two recent studies in European Journal of Obstetrics and Gynecology (and in press). Notably, the majority of those providing and receiving fertility treatment believe counselling should only be mandatory in third party conception; men should be allowed to access posthumous reproduction and, in domestic surrogacy cases, a pathway should be developed for legal recognition of the intending parents as parents from birth.

I find it fascinating that, despite the lack of legislation in Ireland over the last 30 years, and the presence of very comprehensive legislation in our neighbouring country, the UK, similar controversies and debates are occurring today in both jurisdictions with regard to the outcomes of fertility treatment. And, while legislators vacillate and delay, society marches on regardless. One unintended consequence of Ireland's procrastination is that the increasing liberalisation of our society in recent years will ensure that legislation around fertility treatment is progressive and inclusive, especially if cognisance is taken of the views of service providers and service users.