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Thursday, February 26, 2015

Detail on assisted human reproduction rules needs work

A week after getting outline approval from Cabinet, Minister for Health Leo Varadkar has put some flesh on the bones of his proposals for legislation on assisted human reproduction but many questions of detail remain to be answered.

There is, as the Minister has admitted, little chance of this important and long-overdue legislation becoming law during the lifetime of this Government. Given the complexity of the area, work on shaping the proposals needs to start as soon as possible.

The proposed Bill will provide a regulatory framework for a range of practices for the first time, including surrogacy, embryo donation and screening, sperm and egg donation, and stem cell research. Some of these will prove more controversial than others.

At this early stage the obvious focus of disagreement is the proposal to legislate for some forms of surrogacy. For some to even do so amounts to legitimising a practice that devalues traditional parenthood. The group Mothers and Fathers Matter, for example, said it would allow one man or two to use a surrogate mother to have a child, who would be raised without a mother, in violation of its rights.

Some European countries have banned all forms of surrogacy, but by proposing to allow only non-commercial forms Mr Varadkar is following the example of countries such as the UK, Canada and Australia.

Commercial surrogacy will be banned but the payment of “reasonable expenses” is to be allowed. This begs the question of what is considered reasonable expenses for a surrogate mother carrying a child for nine months.

The next big issue surrounding surrogacy is parentage. A child born as a result of a surrogacy arrangement can potentially have a relationship with any of five individuals: the surrogate mother; the commissioning mother; the commissioning father; an egg donor or a sperm donor.

So is motherhood related to gestation or does it arise from the genetic link? Or should it be decided on a case by case basis in the best interests of the child?

Ten years ago the Commission on Assisted Human Reproduction said it should follow “intent”, ie , that the child should be presumed to be that of the commissioning couple. The Supreme Court last year took a different view, and said it should rest with the birth mother.

Mr Varadkar is proposing something of a halfway house, allowing for a transfer of parentage to take place from the surrogate mother to the genetic parents if there is agreement among the adults involved.

But what happens if the adults don’t agree? Or if an agreement made later unwinds? If the surrogate mother decides she wants to keep the child? Or the commissioning parents decide they don’t want to keep it? Also, who looks after the baby in the period before transfer of parentage? Who makes decisions on, say, medical intervention on its behalf?

None of these instances are reasons for shying away from legislation but they do point to the complexity of the issues.

Further complex issues arise in relation to the ongoing rights of a surrogate after parentage has been transferred, and the rights of children born under such arrangements to information about their birth parent on reaching the age of 18.


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