Restrictions on publicly funded fertility treatment in Ireland

Last month, Ireland's Department of Health announced details of the country's first publicly-funded fertility treatment scheme to be rolled out from September 2023.

The funding announcement was cautiously welcomed by advocacy groups, which have been campaigning for such financial support for many years. However, the restrictive eligibility criteria were also noted as a concern that would exclude many prospective patients from availing of the scheme on the basis of age, body-mass index, the number of existing children and the number of previous IVF cycles accessed, RTE reported. Moreover, treatment involving the use of donated gametes (sperm/egg) will not be funded when the scheme launches in September 2023 (see BioNews 1200).

While the Department of Health has indicated that funding for treatment involving donor gametes will be made available at a later stage, it has been reported by the Irish Times that the Government does not intend to review the eligibility criteria for at least a year after the scheme is introduced. With the possibility of an election looming within the same time period, there is a concern that the expansion of the eligibility criteria may fall by the wayside. A survey conducted by one Irish fertility clinic earlier this year found that one-in-two patients have considered delaying fertility treatment until public funding is made available (see BioNews 1187). Prospective patients that require the use of donor gametes will now face the difficult decision of whether to delay their fertility plans further, with no guarantee that the funding criteria will in fact be expanded by a future Government.

The exclusion of treatment involving the use of donated gametes and embryos from the funding scheme has been attributed to the absence of legislation to regulate the area of fertility treatment in Ireland. At present, certain aspects of 'donor-assisted human reproduction' are regulated under the Children and Family Relationships Act 2015 ('the 2015 Act') but Ireland does not have broader regulation of 'assisted human reproduction' (notwithstanding that the practice has been available in Ireland since the 1980s), although it should be noted that various EU Directives exist in this area and there is some clinical guidance available to medical professionals. The Health (Assisted Human Reproduction) Bill 2022 ('the 2022 Bill') proposes to introduce provisions to comprehensively regulate a range of matters pertaining to fertility treatment but this Bill has not yet been enacted. Hence, the Government has reasoned that until the 2022 Bill is enacted, donor procedures cannot be publicly funded.

The rationale of the Government for excluding donor procedures from the funding scheme on the basis that the 2022 Bill has not been enacted requires scrutiny. After all, if legislation is needed to ensure 'safe and appropriate clinical practice' in fertility treatment (as stated by the Minister for Health), then surely no fertility treatment should be funded until such time as the legislation is in place. Otherwise, the State would be funding treatment that is not subject to the oversight of a regulatory body (which is proposed to be established under the 2022 Bill), not subject to legislative safeguards and is open to inconsistency as regards the standards adopted in the different private clinics that will initially provide the funded fertility treatment.

It is also notable that while there is no legislation regulating fertility treatment involving the use of one's own gametes, there is legislation on donor-assisted human reproduction in the form of the 2015 Act as noted above. While the 2015 Act does not address regulatory matters pertaining to treatment provision with donor gametes, it governs a range of other matters including the allocation of legal parentage when donor gametes have been used; minimum ages for donors and intended parents; safeguards for the provision of informed consent; the duties of treatment providers in respect of information gathering, retention and reporting; and includes provisions to protect the best interests of children, among other things. In light of the existence of this legislation, it could be argued that, contrary to the approach of the Department of Health, only procedures involving donor gametes should be publicly funded since all other fertility treatment currently operates in a legislative vacuum.

The decision to exclude donor procedures from the funding scheme will have a particular impact on same-sex female couples and single women who rely on donor gametes in fertility treatment. In the LGBTI+ Parent Families in Ireland: Legal Recognition of Parent-Child Relationships report based on research I carried out with LGBTQI+ parent families in Ireland in 2021, procedures involving donor gametes had been used by 67 percent of all respondents and were the most common pathway to parenting reported by female same-sex couples. The 2015 Act allows for both members of a female couple to be recognised as legal parents where their child is born following donor gamete use provided that certain criteria for recognition are met. This includes a requirement that the procedure take place in a fertility clinic and that the procedure takes place in Ireland (there are some exceptions to the latter requirement in respect of children conceived prior to commencement of the donor gamete provisions). Where an 'at-home' or non-clinical procedure is used, or where the procedure takes place outside of Ireland, the birth mother will be recognised as the legal mother but the second female parent will not be recognised as a legal parent.

Thus, the law requires female couples to undergo treatment involving donor gametes in an Irish clinic, and thereby incur the significant costs associated with clinical treatment, in order for them to be recognised as joint legal parents. Yet, such couples will be excluded from the fertility treatment funding scheme. While different-sex couples who require treatment using donor gametes will also be excluded from the funding scheme, these couples can sometimes circumvent the requirement to undergo treatment involving donor gametes in an Irish clinic in order them to be jointly recognised as legal parents because, where the couple is married, the law operates a presumption of paternity that the husband of the birth mother is the legal father of the child. Hence, the married different-sex couple can be jointly recognised as legal parents when they engage in a cheaper 'at-home' procedure involving the use of a donor gametes, or where they travel abroad to engage in lower-priced fertility treatment, while the female couple (married or unmarried) is required to pay a premium for the privilege of joint legal parentage by availing of treatment in an Irish clinic and they will receive no State financial support in doing so.

Restrictions on public funding for fertility treatment are inevitable due to the limits of the public purse but in order for those restrictions to be publicly acceptable, they must have a rational basis. At present, it is difficult to see the rational basis for excluding donor procedures from public funding in light of the points outlined above and so it is to be hoped that the eligibility criteria will be revised without delay to ensure that fertility treatment is funded in a coherent, equitable and inclusive manner.