Need to reform sperm donor law hits home

‘Pre-conception’ approval of parentage as part of a sperm-donation agreement would provide legal certainty for all involved in the case of home insemination, writes Dr Brian Tobin.

Need to reform sperm donor law hits home

‘Pre-conception’ approval of parentage as part of a sperm-donation agreement would provide legal certainty for all involved in the case of home insemination, writes Dr Brian Tobin.

Home insemination with sperm from a known donor is a cost-effective method of conceiving a child that is both practiced and popular among female same-sex couples.

However, a Supreme Court decision from 2009 makes it clear that if a child is conceived in this manner the birth mother and the known donor will be recognised as the legal parents.

The known donor will have the same legal parental rights as any other unmarried father.

This is frustrating for female same-sex couples because the woman who does not give birth to the child cannot be recognised as its legal parent, even where she is married to or in a civil partnership with the child’s birth mother.

In 2009, the Oireachtas had not enacted any legislation allocating parental rights in the context of donor-assisted human reproduction — that is why the Supreme Court treated the known donor the same as any other unmarried father and enabled him to benefit from existing legislation applicable to such fathers.

Thus, one should not be too critical of the Supreme Court’s decision given that the court was operating in a legislative vacuum as regards donor-assisted human reproduction.

However, the irony is that the Supreme Court’s decision on parental rights in a home-insemination context contributed to the subsequent decision by the Oireachtas to exclude this method of family formation from the Donor-Assisted Human Reproduction (DAHR) provisions of the Children and Family Relationships Act — once commenced, parts 2 and 3 of that legislation will only enable female same-sex couples to both be recognised as the legal parents of a donor-conceived child where that child is conceived in an Irish clinic.

Nonetheless, given that the Oireachtas is better placed to decide on complex social issues, the courts would most likely defer to its decision to enact a balanced statutory model for prospectively regulating home insemination — one that ensures the legal positions of intended parents such as a female same-sex couple, known donors, and donor-conceived children are all adequately protected.

In part, the solution to regulating home insemination lies in the General Scheme of the Assisted Human Reproduction Bill 2017.

This draft legislation is currently undergoing pre-legislative scrutiny before proceeding further.

In Part 8, the General Scheme provides for the setting up of an assisted human reproduction regulatory authority (AHRRA) that must, among its many functions, approve a surrogacy agreement before any treatment in an Irish clinic will be permitted to go ahead.

The AHRRA, a State regulatory body, could similarly approve sperm-donation agreements between intended parents and known donors before any home insemination can take place.

In Part 6 of the General Scheme, a number of safeguards are put in place to protect the interests of intended parents and the surrogate.

Before the surrogacy agreement can be submitted to the AHRRA for approval, the surrogate and the intended parents must receive counselling regarding the potential social and psychological implications of the agreement.

The parties are also required to receive independent legal advice from a legal practitioner about the agreement’s legal implications.

These statutory requirements should help to ensure that the parties’ consent to the surrogacy agreement is a free and fully informed one, and they could equally be made to apply to sperm-donation agreements between intended parents and known donors.

The AHRRA could then approve such agreements, allowing the parties to proceed with the planned conception via ‘home-insemination’.

The agreement could have a shelf-life — if a child is not conceived within 12 months the parties could be required to seek renewal of their agreement so as to proceed.

However, under the General Scheme, ‘approval’ by the AHRRA of the surrogacy agreement between the intended parents and the surrogate will be limited to the approval of treatment in a clinic, not parentage of the child.

This is where my proposal for home-insemination agreements parts company with the proposals for surrogacy arrangements contained in Part 6 of the General Scheme.

The proposals contained in Part 6 only allow parentage of the surrogate-born child to be established via a ‘post-birth’ court procedure.

However, there could be a ‘pre-conception’ model for approving parentage of surrogate-born children, and children conceived via home insemination.

I believe that if the parties to a sperm-donation agreement have received the above mentioned counselling and independent legal advice and are content to proceed, surely they should all be deemed capable of consenting to a clause in their agreement which stipulates that the known donor is not a parent and that upon the birth of the child, legal parentage rests with both of the intended parents?

In other words, the known donor should be able to consent to, and the AHRRA should be able to approve, legal parentage in favour of the intended parents as part of the approval process before the child is conceived.

This ‘pre-conception’ approval of parentage as part of the sperm-donation agreement would provide legal certainty for all — the intended parents would have their legal parental status in relation to the child established before birth and the known donor will have validly waived all of his legal parental rights.

The child’s right to knowledge of genetic identity could be robustly protected because legislation could require the known donor’s identifying and non-identifying information be included in the sperm-donation agreement.

Following the birth of the child, the intended parents would automatically be the legal parents and could register the birth by producing their State-approved sperm-donation agreement to the Registrar of Births as proof of parentage.

Legislation could provide that every entry in the Register of Births of a child born via home-insemination should be linked to the National Donor-Conceived Person Register.

The registrar could be required to furnish the AHRRA with written confirmation that a child born as a result of a certain sperm-donation agreement previously sanctioned by that authority has had his/her birth registered.

On receipt of this written confirmation, the AHRRA could be required to register the specific known donor’s information on the National Donor-Conceived Person Register.

The AHRRA could obtain this information from the copy of the sperm-donation agreement retained by it at the time of the approval process.

Such information could then be made available to the child upon reaching the age of majority.

Since home insemination takes place without any oversight from a fertility clinic then, as a State body responsible for regulating activity in the area of assisted human reproduction, the role of the AHRRA would be to sanction sperm-donation contracts freely concluded by parties who have received adequate counselling and independent legal advice.

It is unlikely that the courts would take issue with such a balanced, considered way of regulating such agreements between adults, especially since it involves State oversight.

The child’s right to knowledge of genetic identity could be vindicated by the measures I propose regarding the interaction between the Register of Births, the AHRRA, and the National Donor-Conceived Person Register.

One can only hope the Oireachtas will consider further legislative reform in the area of donor-assisted human reproduction, reform that recognises the potential of the AHRRA in ensuring couples who wish to use a known sperm donor should not have to resort to a clinic in order to become legal parents.

Dr Brian Tobin is a lecturer in law, School of Law, NUI Galway, and a visiting researcher, Dickson Poon School of Law, King’s College London

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