Progressive New Child and Family Laws, but Some Families are Left Behind

Progressive New Child and Family Laws, but Some Families are Left Behind
The legislation will finally allow both women in a same-sex relationship to be recognised as the legal parents of a child born to them via physician-assisted human reproduction. Picture: iStock

The commencement of new laws offers recognition and protection for some contemporary, more diverse forms of ‘family life’, but this is not a panacea for all ills, writes Brian Tobin

This week, Parts 2 and 3 of the Children and Family Relationships Act 2015 were finally commenced, five years after the legislation’s enactment.

The COVID-19 crisis has prevented so many of us from being with our families; consequently, the importance we place on ‘family life’ has garnered renewed significance in our society.

The commencement of this progressive legislation is timely and should be welcomed because it offers recognition and protection for some contemporary, more diverse forms of ‘family life’.

The legislation will finally allow both women in a same-sex relationship to be recognised as the legal parents of a child born to them via physician-assisted human reproduction.

Previously, the law only recognised the woman who gave birth to the child as its mother and her same-sex partner had no parental rights, even though donor sperm was used to conceive.

However, now both women in a same-sex relationship will be able to be registered as parents on the donor-conceived child’s birth certificate, due to the commencement of Parts 2 and 3, and the commencement of Part 9 of the 2015 Act, which took place in October of last year.

Further, the legislation prospectively offers robust protection for the donor-conceived child’s right to knowledge of genetic identity by requiring the fertility clinics to use gametes from identifiable donors and by setting up the National Donor-Conceived Person Register.

The fertility clinics must record the identifying details of the child’s donor, such as his name, date and place of birth, nationality and contact details and they must provide the Minister for Health with this information so that it can be recorded on the aforementioned register, although one imagines that the Minister will eventually delegate this function to the Assisted Human Reproduction Regulatory Authority (AHRRA) which is due to be set up in the future.

In any event, the legislation provides that the donor’s information can be made available to the donor-conceived child upon reaching the age of 18.

This child-centred development is apt, given that both the Supreme Court and the European Court of Human Rights have long-since recognised the importance to a child of accessing information about their genetic identity. Indeed, as far back as 2005, the Report of the Commission on Assisted Human Reproduction recommended to the Oireachtas that all donor-conceived children in Ireland should, on maturity, ‘be able to identify the donors involved’.

Recent studies on donor-conceived children reveal that an overwhelming number of such individuals want information relating to their donor; there is also growing international evidence that identifying information about one’s genetic parentage can indeed be essential to the mental health of donor-conceived persons.

This is why countries like the Netherlands, Norway, Sweden, Switzerland, New Zealand and the U.K. prohibit anonymous sperm donation, and it is reassuring that the Oireachtas has brought Irish law in line with international best practice.

Nonetheless, the commencement of Parts 2 and 3 of the 2015 Act is not a panacea for all ills – some families are still very much left behind. Reciprocal IVF is practiced and popular among female same-sex couples because it allows one woman to be the gestational mother and the other woman can be the genetic mother. In essence, one woman carries the embryo to term – the embryo is formed from an egg donated by her same-sex partner, and donor sperm, and implanted by physicians in a fertility clinic.

However, same-sex couples in this situation cannot both be recognised as the child’s legal parents because this method of reproduction is not covered under the newly-commenced legislation.

In the Act, a donor and a genetic ‘parent’ of the child cannot be one and the same person, and because the genetic mother in a reciprocal IVF scenario is in fact also the egg donor, she cannot be recognised as a parent under the Act. Only the gestational mother is recognised as the child’s mother and can be registered as such on the birth child’s birth certificate under existing law.

In addition, Parts 2 and 3 of the 2015 Act make no provision to improve the legal status of children born through surrogacy arrangements.

Nevertheless, the General Scheme of the Assisted Human Reproduction Bill proposes to regulate surrogacy that takes place in Ireland, but it has been stuck in ‘development hell’ ever since it was published in October 2017.

Further, this draft law does not propose to regulate international surrogacy arrangements, despite the fact that the vast majority of Irish couples who need to have a child via surrogacy enter into surrogacy arrangements abroad, in places like the U.S., Canada, and the Ukraine. In 2018, a survey carried out by Families through Surrogacy (now Growing Families), an international non-profit organisation that provides support to those going through surrogacy, estimated that up to 68% of all surrogacies for Irish couples have taken place in the Ukraine.

While the commencement this week of Parts 2 and 3 of the Children and Family Relationships Act is very much a step in the right direction as regards protecting a child’s right to knowledge of genetic identity and improving the legal status of children conceived through some methods of donor-assisted human reproduction, there is still much work to be done to ensure that surrogate-born children and those children conceived through reciprocal IVF can have both of their parents recognised under Irish law.

- Dr Brian Tobin, Lecturer In Law, NUI Galway.

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