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Monday, November 17, 2014

Urgent need for laws on assisted human reproduction

Earlier this month, the Supreme Court handed down judgment in a landmark case concerning the legal motherhood of a child born through a surrogacy arrangement. While the High Court seemed willing to stretch existing laws to accommodate this novel situation, and suggested that the Constitution required it to do so, the Supreme Court took the opposite view.

It found that Irish law had failed to keep up with scientific progress in human reproduction and that in the absence of specific legislation, the courts could do nothing to remedy that failure.

The case, MR vs An t-Árd Chláraitheoir, involved an agreement between two sisters. One sister (the genetic mother) suffered from a medical condition that meant that while she could produce eggs, she could not carry a pregnancy to term.

Her sister (the gestational mother), who already had children of her own, agreed to carry the pregnancy as a surrogate. In contrast to recent reports of surrogacy arrangements that ended in disaster, this agreement worked precisely as planned.

The gestational mother gave birth to twins and handed them over to the genetic parents. The only damper on an otherwise happy ending was the fact that, according to the chief registrar, legal motherhood could only be attributed to the woman who gave birth to a child, whatever that child’s genetic makeup. The genetic mother and father challenged the absolute nature of this rule.

The Supreme Court bluntly acknowledged that Irish law was woefully inadequate in failing to provide for familial relationships arising from surrogacy and other forms of assisted reproduction.

Mr Justice Adrian Hardiman vividly described this legislative inertia as akin to a situation where “road traffic law had failed to reflect the advent of the motor car”. Although sympathetic to the plight of the genetic parents, the Supreme Court found that it would be wholly inappropriate for the courts to try and fill that vacuum.

Regulating assisted reproduction was the job of the Oireachtas, it said, and although subject to the Constitution, the job of the Oireachtas alone.

This is not the first time that the court has admonished the legislature for a failure to regulate assisted reproduction. It did so in the case of Roche vs Roche in 2009, when the Supreme Court criticised the legislature for failing to make any provision for legal protection of the human embryo. Now, five years later, the court’s disapproval has grown even more pronounced.

After MR vs An t-Árd Chláraitheoir, the message from the Supreme Court is abundantly clear: Irish law is inadequate to deal with the novel relationships created by assisted reproduction, and it is the job of the Oireachtas to fix that. In many ways, this is a laudable approach.


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