The Department of Health earlier this month published the heads of a bill which aims to regulate assisted human reproduction (AHR), including surrogacy. While up to 3,000 babies are born each year in Ireland as a result of AHR, Ireland is one of the few countries in Europe without legislation to regulate this sector.

Under Irish law at present, the woman who gives birth is the mother of the child. If she is single, then she alone is the parent and guardian of the child. If she is married, there is a rebuttable presumption that her husband is the father of the child. DNA evidence will be required to show that the biological or commissioning man is the father of the child. However, while the commissioning father can have his parentage declared, the biological or commissioning mother cannot.

Background

Given the legal, ethical and social concerns arising in relation to AHR and associated research, the need for legislative intervention in these areas has been highlighted in a number of expert reports and high-profile Irish court cases.

In 2005 the Government established a Commission on Assisted Human Reproduction (the "Commission") to advise on how the area could be regulated. Although the report of the Commission recommended that the parentage of the commissioning couple be presumed, and that an AHR regulatory body be established, over 12 years later these recommendations have still not been introduced into Irish law.

Complex arguments surrounding legal issues as to parentage in AHR have been ventilated before our courts in recent years. In 2013, the Supreme Court in MR and DR v An t-Ard Chláraitheoir heard an appeal concerning the registration of the mother of surrogate twins. The Court held that while there was no constitutional barrier to legislate for appropriate laws on surrogacy, such legislation had not been passed (despite the 2005 recommendations of the Commission) and in the absence of such laws, the birth mother was the legal mother and the genetic mother was not entitled to be registered as the mother.

Of significance was the Court's observation that there existed a "manifest lacuna in the law". All of the judgments heavily criticised the Government for failing to keep up to date with medical developments and emphasised the pressing need for the Oireachtas to urgently deal with the issues raised by the case.

On 17 February 2015, the Government approved the drafting of a General Scheme of a Bill for AHR and associated research ( the "Scheme") and the publication of the Heads of the Bill in October 2017, over two and a half years later, marks a major legal and social milestone.

Overview of Key Provisions

The proposed legislation has a number of objectives, most importantly, protecting and promoting the health and safety of children born through AHR, their parents and others involved in the process including donors and surrogates. In particular, the welfare and best interests of children born through AHR is a key principle which permeates throughout. The Scheme sets out the general principles applicable in the context of AHR, including informed consent and counselling, and conditions regarding gamete (sperm or egg) and embryo transfer. An Assisted Human Reproduction Regulatory Authority will also be set up to oversee the sector and implement the relevant principles.

The Scheme seeks to regulate a range of practices including:

  • surrogacy;
  • gamete and embryo donation AHR and research;
  • pre-implantation genetic diagnosis (PGD) of embryos;
  • posthumous assisted reproduction; and
  • embryo and stem cell research.

The proposed legislation seeks to allow for surrogacy on an altruistic basis (there is an express prohibition against commercial surrogacy) and it is envisaged that all surrogacy arrangements will be pre-authorised by the AHR Regulatory Authority. This body will be tasked with ensuring that fully-informed consent is given by the surrogate mother and consultations, including mental health and legal, will be required in order for consent to be valid.

It is not possible to predict a timeline for when we should expect to see the proposals contained in the Scheme come to fruition. The legislation has not been marked as a priority on the Government's legislation programme for the Autumn/Winter term. As the Scheme is lengthy (188 pages) and involves complex legal, social and ethical issues, it is likely that the drafting of the proposed Bill and its later passage through the houses of the Oireachtas will involve long debate, discussion and amendment. In any event, the publication of the Scheme is a very welcome first step in what could transpire to be a long road ahead.