Mary Wingfield: Surrogacy ruling will have disastrous fallout if we don't legislate right away
I WRITE on behalf of the Irish Fertility Society which represents the majority of doctors, nurses, scientists, counsellors and administration staff working in the area of fertility treatment in Ireland.
We welcome the decision in the recent surrogacy case which recognises the commissioning parents (the couple who wished to conceive via surrogacy and who in this case provided the sperm and eggs) as the legal parents of the twins born.
However, we have serious reservations regarding some of the reasoning behind the decision and its possible implications for other fertility treatments in this country.
Surrogacy is complex and involves several very different scenarios.
Medical surrogacy involving IVF (in-vitro fertilisation) allows a woman who is unable to carry a pregnancy (eg, no uterus/womb) to conceive by performing IVF with her eggs and her partner's sperm which are used to create an embryo which is transferred to the womb of another woman (the surrogate). The surrogate carries the pregnancy for the commissioning couple.
However, in other surrogacy cases the egg may be provided by the surrogate or either the egg or the sperm, or both, may be donated by a third-party donor.
Apart at all from surrogacy cases, donor eggs may be used in standard IVF where the woman has no suitable eggs. For men who have no suitable sperm, conception can occur with IVF or artificial insemination using donor sperm.
Treatments using donor sperm and donor eggs are much more common in Ireland than surrogacy cases. A very small number of cases involve donated embryos.
In medical and scientific terms, the persons who provide the sperm and eggs used in IVF/artificial insemination/surrogacy cases are termed the "biological" or "genetic" parents. However, these do not necessarily equate with the "legal parents". The current judgment relies heavily on determining legal parentage according to biological "blood lines". While this fits the current case, it could have disastrous consequences for the significant number of couples who become parents using donor sperm or eggs.
In all countries, the presumption in cases of egg, sperm or embryo donation is that the recipient woman and her partner are the legal parents of the child with the attendant obligations and responsibilities towards that child. This applies irrespective of whether the donation occurs openly or where anonymity of the donor(s) is protected. The donors of eggs, sperm and embryos have no rights or responsibilities with regard to the child.
If the arguments used in the current case were applied to such donor conceptions, Irish law would be contrary to that in the rest of the world and would certainly not be in the interests of a large number of couples with fertility problems, or their children.
Most donor eggs and sperm used in Ireland come from donors abroad and it would be inappropriate and indeed unworkable to imply that such a donor be the legal parent of a child born in Ireland to the couple with the fertility problem.
The Commission on Assisted Human Reproduction (CAHR) report, published in 2005 and in which I and several other Irish Fertility Society members took part, addresses all of these complex issues very comprehensively.
In both surrogacy and donor conception cases, the CAHR recommended that "the principle of intent" should apply in determining legal parentage. Therefore the majority opinion concluded that the child born through surrogacy should be presumed to be that of the commissioning couple.
The CAHR concluded, however, that in donor programmes the intent of all parties involved – that the donor will not have any legal relationship with the child and that the woman who gives birth to the child will be the child's mother – should be used as the basis for the assignment of legal parentage.
Not relevant to this particular case is the need to protect the rights and obligations of all parties involved in surrogacy arrangements.
While the rights and welfare of the children born should be paramount, the rights of the surrogate and also those of the commissioning couple must also be protected. There is a significant risk of commercialisation in surrogacy cases.
This case, and similar previous cases, exemplifies again the need for legislation in Ireland governing assisted reproduction procedures such as IVF, donor conception and surrogacy. We are currently one of a handful of countries in Europe to lack such legislation.
We call again on the Department of Health and the Government to urgently adopt the recommendations of the CAHR and set up a regulatory authority for assisted human reproduction. Individual couples should not be forced to resort to the High Court to fight for their rights and those of their children.
Dr Mary Wingfield, MD, MRCOG, is Honorary Secretary of the Irish Fertility Society