Llei Irlanda

8/11/2019 Llei Irlanda

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Cardiff Centre for Ethics, Law & Society

Assisted Reproduction in the Republic of Irelanda Legal

Quagmire

Dr. Deirdre Madden

Faculty of Law, University College Cork,Cork, Ireland

Introduction

In vitro fertilisation (IVF) has been practised in the Republic ofIreland since 1987 and there are at present nine units in Irelandcarrying out assisted reproduction treatment services. Donorinsemination is available, though only through importation of the

sperm from the UK and elsewhere. Egg donation has recentlybecome available in one clinic, and, to date, there have been noreports of embryo donation or surrogate motherhood carried out inthe jurisdiction.

Assisted human reproduction (AHR) services are carried out inIreland in the absence of any legislative provisions, and with onlyvery general guidance from the Irish Medical Council. The Ministerfor Health set up the Commission on Assisted HumanReproduction (CAHR) in 2000, and a report from that Commissionis expected shortly. (the terms of reference of the Commission areavailable at http://www.cahr.ie) However, the possibilities oflegislating for AHR in Ireland are complicated, not least by theethically controversial nature of the treatments themselves, but bythe potential impact of the provisions of the Irish Constitution,Bunreacht na hEireann, 1937. This paper describes the currentposition in relation to the provision of AHR services in the Republicof Ireland, and outlines some of the difficulties that may face

legislators in this jurisdiction in attempting to regulate the area.

Existing provisions

The Medical Council of Ireland is the statutory body empowered toregulate the medical profession in the Republic of Ireland(http://www.medicalcouncil.ie). Its functions include giving


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guidance to the medical profession on matters relating to ethicalconduct and behaviour. To that effect it issues a Guide to EthicalConduct and Behaviour every 5 years, the most recent edition(6th) was published in March 2004. In relation to AHR, the Guide

(section F) provides for sperm/ova freezing for use by those fromwhom the gametes were taken, and advises doctors who considerdonor programmes for their patients to be cautious in relation tothe source of the material and the advice given to patientsregarding the consequences of the donation.

In relation to IVF the Guide stipulates that any fertilised ovummust be used for normal implantation and must not be deliberatelydestroyed. The Guide does not expressly stipulate when

implantation must take place and therefore embryo freezing,followed at a later stage by embryo transfer, is presumed to bewithin the terms of the Guide. Destruction of the embryos, with orwithout the consent of the gamete providers, is not permissibleunder the terms of the Guide. The only change made to theparagraph dealing with IVF in the most recent guide states that ifcouples have validly decided they do not wish to make use of theirown fertilised ova, the potential for voluntary donation to otherrecipients may be considered. The Council might have seen this

as a pragmatic way of dealing with surplus embryos withouttransgressing the prohibition on embryo

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destruction, and its members were no doubt also mindful of theprovisions of the Irish Constitution, which oblige the State torespect the right to life of the unborn. This is discussed furtherbelow.

Although the Guide is described by the Council itself as anarticulation of general principles of ethical conduct rather than abinding legal code, nonetheless it is clear that medicalpractitioners in Ireland do adhere to the Guide in practice. One ofthe difficulties in the AHR area is that not all of those involved inthe provision of AHR treatments would in fact be registeredmedical practitioners, and would therefore fall outside of the remit


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of the Medical Council. However, it would be seen as theresponsibility of the clinics medical director to ensure that theclinics practices do not contravene the Medical Councils Guide,or risk an application being made to the Fitness to Practise

Committee of the Medical Council in order to have his/her nameerased from the medical register.

There is no central licensing body in Ireland with responsibility forcollecting details from clinics in respect of treatments carried out,or children born as a result of treatment services.

Irish Constitutional provisions

There are a number of Constitutional provisions that potentially

affect the provision of AHR services in Ireland. These includeConstitutional rights to privacy and bodily integrity, custody of achild, equality before the law, and other personal and family rights.However, probably the most important provision in the Constitutionin this context is Article 40.3.3, which states as follows:

The State acknowledges the right to life of the unborn and, withdue regard to the equal right to life of the mother, guarantees in itslaws to respect, and, as far as practicable, by its laws to defend

and vindicate that right.

This provision has been the subject of much controversy inIreland, predominantly in the area of abortion, since itsincorporation into the Constitution in 1983. However, the articlealso may have an impact on IVF, and is a factor that the Irishgovernment will have to grapple with in any attempt to legislate forthe provision of AHR services in Ireland for the future.

It is often presumed, without much analysis, that the IrishConstitution prohibits embryo research and destruction, but suchan interpretation may not be strictly accurate. The most significantword in the article for IVF purposes is unborn. If this word isinterpreted by the Irish Supreme Court to mean the fertilisedovum/embryo, then the rights ascribed to the unborn in theConstitution, specifically the right to life, come into play. Thus, the


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State would be obliged to respect and, as far as practicable,vindicate those rights. This would cause difficulties in relation tothe storage of embryos, and most certainly, in relation toembryo/stem cell research, as by facilitating storage and research

the State could be seen as failing in its obligation to vindicate theright to life of the unborn.

On the other hand, if the word unborn were interpreted asextending only to the embryo after implantation in the uterus, thenit would seem that embryo freezing and research would not violatethe Constitutional provisions. There is little guidance from thelimited Constitutional jurisprudence in existence in relation to thisarticle. In Attorney General

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(SPUC) v Open Door Counselling Ltd. (1988), Hamilton J. held that

the Offences Against the Person Act 1861 protects the foetus inthe womb, and that protection dates from conception. It is not,however, clear from the context whether conception meansfertilisation or implantation, a crucial distinction in relation to IVF.

In Attorney General v X in 1992, the Supreme Court considered the

article in the context of a young girl who had become pregnant asa result of rape, and who was considered to be at risk of suicideas a result of the pregnancy. The Court interpreted theConstitutional provision to mean that the termination of pregnancywas permissible only when it was established as a matter ofprobability that there was a real and substantial risk to the life ofthe mother if such termination were not effected.

In relation to the question of when Constitutional protectionbegins, and therefore whether the pre-implantation embryo fallswithin the scope of the article, there is little to be gained from areading of the judgments in the case. Given that the facts of thecase pertained to an established pregnancy, the court did nothave to consider the question as to whether or not the provisionapplied to the embryo prior to implantation. The language of thecourt relates to the life of the infant in the womb, and Hederman


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J. (dissenting) states that one cannot make distinctions betweenindividual phases of unborn life before birth, or between unbornand born life. Unfortunately it is far from clear from this case, orany other, to what extent, if any, the Court would apply the

protection of Article 40.3.3. to the embryo outside the womb.

Academic commentators can only conclude that it cannot be saidwith certainty whether the protection afforded by Article 40.3.3 tothe unborn applies from the moment of fertilisation, the momentof implantation, or from some later date. (Kingston, Whelan andBacik, 1997) The Constitution Review Group (1996) agree thatdefinition is needed as to when the unborn acquires theprotection of the law. Their Report states that the word unborn

seems to imply on the way to being born or capable of beingborn, but whether the Court would accept either of thosedefinitions is as yet a moot point.

Sherlock (1989) argues that it is likely that the courts would holdthe in vitro embryo to come within the protection of the

Constitution and, if this were the case, it would rule out embryoresearch and embryo destruction. It would also have implicationsfor infertility treatments involving in vitro fertilisation (IVF) as itwould undoubtedly require that all embryos produced would haveto be placed in the womans uterus. However, Madden arguesthat if the unborn means not yet born or with the potential to beborn then, in the light of the biological development of the earlyembryo and the absence of potential in the pre-implantationembryo, it is likely that the embryo in the laboratory does notqualify for this Constitutional protection. (Madden 2002)

Ultimately the meaning of the word will fall to be interpreted by theIrish Supreme Court.

Gamete Donation

As has been stated above, there is an implicit permission given tomedical practitioners to provide gamete donation services topatients under the provisions of the Medical Councils guide.However, the legal consequences of such donations, for example


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in relation to parental responsibilities, or the rights of thoseconceived by this method, have not been dealt with by anylegislation. Apart from the inherent difficulties that arise in

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ascribing parental rights in this context, the issue of donoranonymity is also problematic. At the present time no sperm bankexists in Ireland to provide donor sperm for insemination serviceshere and therefore the sperm used in such procedures isimported, mostly from the UK. Presuming that the sperm isimported from licensed clinics in the UK, such clinics would beobliged to comply with the provisions of the Human Fertilisationand Embryology Act 1990, and the Code of Practice issued by the

licensing authority, the HFEA. Thus, whatever provisions exist inrelation to the provision of information to children under the UK

Act, will also apply to the sperm currently imported into Ireland.

Access to treatment services

Another controversial issue that arises in relation to AHR is that ofaccess to services. The Irish Constitution provides recognition forthe family as the natural and fundamental unit group of society,

and further, pledges to guard with special care the institution ofmarriage on which the family is founded, and protect it againstattack. (Article 41.3.1) A question arises as to whether, if AHRtreatment services were provided to single persons or same-sexcouples, such a policy would be in keeping with this Constitutionalprovision. A seemingly straightforward solution might be to restrictaccess to services to married couples, but this is not in line withcurrent practices of treating unmarried couples, the MedicalCouncil guide (which no longer provides such a restriction), or

equality law in Ireland.

A further complication is the Equal Status Act 2000, whichprohibits discrimination in the provision of services, on the basisof, inter alia, marital status, race, gender, disability and sexualorientation. There is no derogation given in the Act for AHR clinicsand therefore it must be assumed that the Act currently applies to


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the provision of AHR treatment services. This means that clinicsmay not refuse to treat on the basis of, for example, marital statusor sexua l orientation, though discrimination will not be consideredunlawful if made on clinical grounds, such as, for example, age or

health of the mother. However, discrimination on grounds ofdisability may not be unlawful if the treatment of that person lessfavourably to other persons is deemed necessary to prevent harmto that person or others. It remains to be seen whether complaintswill be made against clinics under the provisions of this Act, and ifso, what attitude the courts will take to the potential conflict withthe Constitutional protection of the marital family.

Surrogate motherhood

Irish clinics have not provided surrogacy treatment services todate. However, Irish couples have travelled to the UK and the USin furtherance of surrogacy arrangements made in those

jurisdictions. As the law currently stands, the children born throughsuch arrangements are in a legal limbo due to the absence oflegislative means by which their status might be regularised.

Adoption legislation in Ireland provides that the payment or receiptof money in connection with an adoption is a criminal offence

(Adoption Act 1952, s. 42(1)). However, it is not entirely clearwhether adoption law would come into operation in a surrogacycase due to the lack of definition as to who the legal mother of thechild is. If the legal mother of the child were the commissioningmother (who may also of course be

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the genetic mother), then the question of adoption would not arise.She and her husband would be registered on the birth certificateof the child, and would have custody. However, if the birth motherof the child were regarded as the legal mother, then in order forthe commissioning couple to establish a legal relationship with thechild, she would have to relinquish her Constitutional rights tocustody, and give the child up for adoption.


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In order for this to comply with adoption law, such an arrangementcould not be done privately, but only through a recognisedadoption agency. The Adoption Acts provide that it is not lawful forany person to give a child to any other person for the purpose of

having that child adopted unless the person who intends to adoptthe child is a relative, or the spouse of a relative of the child(Adoption Act 1952, s.34, as amended). Therefore, it may bepossible to arrange an adoption directly with the Adoption Boardwhere the commissioning couple are genetically related to thechild. However, the question of payment might arise in this contextand raise the spectre of criminality for both the surrogate motherand the commissioning couple.

In terms of the rights of the father in this situation, a man who ismarried to the legal mother of a child is presumed by law to be thechilds father. Therefore, if the surrogate mother is the legalmother and she is married, her husband is presumed to be thefather, though this is a rebuttable presumption. This raises otherproblems as the child is then a child of the marital family andcannot easily be given up for adoption. In exceptional cases, theHigh Court may make orders under section 3 of the Adoption Act,1988, authorising the adoption of children whose parents have

failed in their duty of care towards them. Children born withinmarriage may be adopted under this provision. A child born to amarried woman but whose husband is not the father, is eligible foradoption provided the facts of the child's paternity can be provento the satisfaction of the Adoption Board. The child must reside inthe State, be at least six weeks old and under 18 years of age.The child need not have been born in this country.

If the surrogate mother is unmarried and the commissioning man

is the genetic father, he may apply to court for guardianship rightsin relation to the child, but this is not an automatic entitlement. Thedifficulty remains that even if he is appointed guardian of the child,his partner may not have any legal relationship with the childunless they jointly apply for an adoption order in respect of thechild. This again raises the question as to whether the AdoptionBoard and the High Court would be likely to view any payment


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political history, as well as the Irish Constitution and the smallnumber of potentially relevant legislative provisions, will no doubtexacerbate the difficulties involved in any legislative attempt toregulate the provision of AHR services in this jurisdiction. The

recommendations of the Commission on Assisted HumanReproduction will be the first attempt at debating the issues andarriving at some consensus in the area. Whether the IrishGovernment will take it upon themselves to act on the Reportremains to be seen.

References

Attorney General (SPUC) v Open Door Counselling Ltd. [1988] IR 593

Attorney General v X [1992] 1 I.R. 1

Kingston, Whelan and Bacik, Abortion and the Law (Round

Hall/Sweet & Maxwell, 1997)

Report of the Constitution Review Group, May 1996

Sherlock The right to life of the unborn andthe Irish Constitution(1989) XXIV Ir. Jur. (n.s.) 13

Madden, Medicine, Ethics and the Law (Butterworths, 2002)

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