Potential Problems Accessing Assisted Human Reproduction and Fertility Treatments

[Speaking in the Seanad during Second Stage of the Children and Family Relationships Bill]

I express my gratitude to the Minister, her officials and her predecessor for tackling this extremely complex issue. This has been a Herculean task. Without trivialising it, in attempting to read the Bill and its explanatory memorandum, I was reminded of the famous remark made by Groucho Marx when he thanked someone for giving him a book explaining Ulysses. He said he now needed somebody to send him the explanation of the explanation. This is extraordinarily complex and I am not sure I understand it all. I hope we will have the opportunity on Committee Stage to go through some apparent internal inconsistencies.

There was no precedent for the technological aspects of this Bill. The constitutional framework of our country and the body of laws we had could not have foreseen a situation where assisted reproductive technology would reach the level it did and where we would be confronted with such a mesmeric array of potential problems that must be sorted out. Criticism is the wrong word. Any editorialisation of aspects of the Bill should not be seen as critical because I understand what a colossal job it has been.

I will focus on some of issues relating to assisted human reproduction and fertility issues. Again, I have spent some time grappling with this and I am not sure I have it right because I am not sure I understand it all. It is very complicated. It is to be hoped that when we go through the issues in detail, we will have the opportunity to unravel them. This leads me to a point I must make at this stage, and please do not think me disrespectful. Of some of the legislation that comes through the Houses, this one is actually important. An awful lot of stuff that comes through about moving writs or boundaries, arcane aspects of tax law or secretaries and Ministers Bills appears to have little real-life relevance to the average person. This Bill has the potential to change people’s lives and I must say that some of the changes that occur as a result of this will be negative. It is that simple.

Infertility is an awful tragedy. I speak with some authority on this subject because probably uniquely in this room, I cause infertility. The treatments we give cancer patients can make them infertile. Even if the treatments do not make people infertile, the disease can make them infertile. Sometimes, people only become aware of infertility when they are confronted with a diagnosis of cancer or another serious diagnosis. Of all the very sad conversations I have with people when they come to me with a cancer diagnosis, the conversation I like the least is the one about potential limitations of their lifespan, disability and the possibility of serious side effects, but one that bubbles to the top all the time is infertility. This is an extraordinary tragedy. One of the great things that has occurred in recent years is that we have some ability to ameliorate the effects of infertility as a result of assisted human reproductive technologies. I would be terribly defensive of that facility continuing to exist and not being limited. No matter how well-intended the Bill is, if it has the effect of reducing access to reproductive technologies, and I believe it will as currently constituted, that will be a tragedy. For that reason alone, if our amendments that seek to address those problems are not dealt with, I will probably vainly oppose the Bill. It is critical that we not do leave this deliberation on all Stages and the presidential signature when legislation will stop people with fertility problems from being able to access the appropriate technologies which will enable them to become parents.

In particular, I am very troubled about the lack of anonymity for donors. There is no doubt about this. If we bring in a policy that sperm and other gamete donors will be potentially be identifiable, the practice in Ireland will all but stop. It is that simple. At the moment, we do not have a great deal of gamete donation in Ireland but we have the use of anonymously donated gametes sourced in other countries. My understanding is that this will in effect become illegal when the Bill comes into play. One of the effects of this will be that people will become fertility tourists. People who wish to get donated gametes and who are unable to get them here will leave the country. I do not mean to trivialise this but for many years, we have grappled with another issue in the area of reproductive technology where we were frequently told we exported our problem. Ironically, having exported the problem of ending pregnancies, we could end up exporting the problem of trying to achieve pregnancy. I would be terribly troubled by this.

There is, of course, an argument to be made in favour of the right to know one’s genetic origins. What will happen is that we will find this coming head to head with the right to exist because there are people who simply would not have been born if the right to know their genetic origins had been felt to trump to the right of access of one or other of their parents to donated gametes. There are other issues. At the moment, people who undergo sperm or gamete donation, sometimes commercially but also through altruism, know that this is it. The deal is over once the donation is made and the tests and paperwork are done. That part of their life has closed behind them. This will end and I believe it will have a chilling effect on donations.

As well as that, there are people who use their own gametes and who must have in vitro fertilisation because they may have gynaecological or other urological problems which mandate extra-corporeal fertilisation of their and their regular partner’s gametes to form an embryo. As practised now, there can be surplus embryos. These people often make an altruistic and noble decision to make these available to other infertile couples who do not have the ability to produce their embryos through the intermingling of their gametes. This will end because people will no longer be able to do it anonymously and people may find that somebody will come looking for them in years to come. I understand that the law contains protections against any financial responsibility for the upkeep of a child resulting from this process, but some people would like the anonymity. I fear greatly that this will end as well.

I am afraid we are going to end up with a situation where fertility treatments become the preserve of the wealthy. It is that simple. That is what is going to happen. If people want to get access to anonymously donated sperm or eggs, they will have to leave the country to do it. This is something that is beyond the wherewithal of many people in our country right now. It is really important that this is thought through. Perhaps for reasons that are different from those of Senator Walsh, I fear a rush on this matter. That must be frustrating when people have put together this extraordinarily complex document and I am sure very brilliant legal minds and reproductive medical and scientific advice have gone into formulating it, but there is a real danger that it will leave us with a big problem. I hope it does not.

There is a technical issue I may be misunderstanding but I would like the Minister to address an internal inconsistency in the Bill between the definition of intended parents in different sections. In light of the recent now infamous Bederev judgment on drug policy, would some of the stipulations in the Bill which allow considerable ministerial latitude for amending regulations as they go along be in conflict with the Supreme Court’s ruling in that case?

I respect the work the Minister, her colleagues and officials have done on this Bill. It would have been better if this were several discrete Bills dealing with smaller discrete issues which would have made it easier to tease them out and debate. If we get this wrong, we face not only misery but litigation, and while that goes on, if internal inconsistencies are found in the Bill, the process may stop and a generation of couples, women and men may find they are not able to access fertility treatments.

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