12th July 2005
In 1999, with the assistance behind the scenes of David Tomkin and Ian McAulay, legal experts, I brought forward a Private Member's Bill in Seanad Eireann on the regulation of Assisted Human Reproduction, (AHR). After a little huffing and puffing I was allowed a Second Reading in the Seanad which means we made speeches on the issue but that was the end of it except that the then Minister for Health, Mr. Micheal Martin, T.D., promised that a commission would be set up to investigate the topic.
You can imagine, therefore, that I have long looked forward to the Report by the Commission on Assisted Human Reproduction, chaired by my good friend Professor Dervla Donnelly. The Report is everything one could wish for, comprehensive, well written and understandable by those without a scientific background.
In general the members of the Commission were in agreement with all the recommendations, although there were single objections (not always by the same person or people) to some.
My Bill dealt, in particular, with the need to establish a register of clinics, what procedures were carried out in them, success rates and prices. It also declined to make surrogacy contracts enforceable. These areas are covered in the recommendations of the Commission Report, but far more is included. For example, one section deals with stem cells.
The chapter on ethical issues is sure to attract attention when we discuss the Report in the Committee on Health and Children, to which it is to be referred.
Surveys carried out on behalf of the Commission found that 68% of Irish people found AHR to be an acceptable approach to infertility and only 14% found it unacceptable. This is hardly surprising seeing that about one in six couples have trouble with infertility, using the definition of the World Health Organisation (WHO), that is failure to conceive following one year of unprotected sexual activity constitutes infertility. Most people must know others, be they family or friends, with fertility difficulties, even though this is a topic all agreed which is not easy to discuss.
Society, therefore, has a general interest in the treatment of infertility and the ethical issues involved. The report adverted to "the fact that there had been much public debate in Ireland in recent years on three issues that have major ethical implications: abortion, contraception and divorce." The Commission analysed these debates because it was felt that they provided "an indication of the evolution of ethical attitudes in Irish society over the last thirty years."
The amendment to Article 40 of the Constitution inserted in 1983 in which the State acknowledges the right to life of the unborn did not define "unborn". When the amendment was discussed in Seanad Éireann before the referendum, Senator Catherine McGuinness, now Judge of the Supreme Court, tried to have the "unborn" defined as the fertilised egg outside the womb. If such a definition was in place it would be easier to legislate with confidence for AHR because some, including one member of the Commission, G. F. Whyte, felt that legal protection for the unborn begins at fertilisation. Therefore, fertilised eggs which are created in vitro must have the full protection of the State. It would mean one could not allow such embryos to perish. But if, as the Report says, "on the other hand Article 40.3.3 does not apply to an in vitro embryo from fertilisation, there would be no constitutional impediment to IVF or to other associated procedures (including embryonic and stem cell) research and the disposal of embryos diagnosed with genetic disorders."
The lack of clarity in the law means that clarification can only be sought in one of two ways - by the Supreme court or another referendum. To quote Shakespeare, "Ah, there's the rub."
The risks for the woman in ovarian hyperstimulation and collection of the ova produced are carefully explained. Most would feel it imperative that she should not have to repeat this procedure. For example, should she fall ill following the treatment it may be impossible to transfer the fertilised egg immediately to her uterus in case it exacerbates her symptoms. Also, it is recognised that the risks of multiple pregnancies from increase in miscarriage to the development of Cerebral Palsy in the resultant children means that it is preferable to implant only two fertilised ova. Therefore, freezing of the embryo at an early stage is needed in case the pregnancy has to be delayed and "spare" embryos, which are frozen can be implanted later if the first attempt fails or if further pregnancies are desired.
And the examination of the early embryo for "quality" will be emotive. But if we implant embryos which are likely to abort at an early stage, as happens in nature if they are abnormal, will not the whole procedure have been in vain? And what about pre-implantation genetic diagnosis? If the couple have sought help because of a serious genetic condition which caused the demise or serious illness of a previous child should the state insist that the benefits of genetic diagnosis cannot be given to them to allow them the best possible chance of having a healthy child?
Stemcell research, cloning and all those issues are ahead of us for discussion. The members of the Commission must be congratulated on providing a document which allows us to address these areas with such balance and lucid argument.
Finally, surrogacy. Surrogacy has been around since the Old Testament, Abraham and Hagar producing Ishmael being a good example. But when Sarah became pregnant Ishmael and his mother were sent to the desert.
Surrogacy is with us and needs to be addressed urgently. Children born to mothers abroad in particular can be in a legal limbo. We see in the media cases of high profile couples, heterosexual and same sex, who have surrogate children born abroad. I would hate to think it takes a high profile case before the Courts for us to get around to bringing in some much needed legislation. The present Adoption legislation will not do if money has changed hands and the Guardianship of Infants Act is inadequate.
Senator Mary Henry, MD
