The definition of the "unborn" as an implanted embryo is suggested, writes Carol Coulter
The establishment, by statute, of a new regulatory body to deal with all issues arising from human infertility treatment is the key recommendation of the Commission on Assisted Human Reproduction.
However, much attention will focus on its recommendation that only an implanted embryo should attract constitutional protection, thereby paving the way for a number of other proposals.
A regulatory body would license and regulate all providers of infertility treatment, and would ensure the provision of such services was free from all forms of commercialisation. However, it would do so within a legal framework to be set down by law, the outlines of which have also been set out in the report.
One of the central elements in this proposed legislation is the settling, for the first time, of the vexed question of when the "unborn", whose right to life is protected by the Constitution, attracts this protection.
This has never been defined either in legislation or by the courts, and there are conflicting views over whether the fertilised egg immediately qualifies as the "unborn", or if this only refers to an implanted embryo capable of being born. The commission, with one dissenting voice, takes the latter view.
As a consequence, it was able to adopt a number of other recommendations with a similar majority. These included proposals that research should be permitted on surplus embryos.
At the moment this is not possible, not because of legislation, but because the Medical Council and ethics committees in research hospitals do not permit it. The clarification of the law in this area could pave the way for such research in Irish hospitals.
However, the commission is opposed to the generation of IVF (in vitro fertilisation) embryos for the purpose of research. It also recommends that those availing of fertility treatment should be able to avoid any treatment that resulted in the production of surplus embryos.
The commission recommends the establishment of guidelines governing the freezing and storage of sperm as well as embryos. Research on sperm and ova should be permitted, but should be regulated, it says. Guidelines should also be laid down for the disposal of surplus embryos, including their voluntary donation to other infertile couples, donation for research, or allowing them to perish.
Other issues that arise in IVF are the manipulation of sperm for preconception sex selection, which should be permitted only for the prevention of serious sex-linked genetic disorders, not for social reasons, it says.
More controversially, the report recommends that pre-implantation genetic diagnosis should be permitted. This arises where there is a risk of a serious genetic disorder that could be avoided if only embryos without certain genetic characteristics were implanted. Such procedures should only be permitted under licence, and if no other treatment was available, it says.
The regulatory body should also be able to deal with situations where such embryos were abandoned, where couples could not agree on what to do, or in situations where one of the couple died or was incapacitated, or where they separated.
Another recommendation that is likely to prove controversial is that the general provisions of the Equal Status Act should apply to the provision of infertility treatment, subject to the welfare of the child and an upper age limit. This means that there could be no discrimination in availing of such services on the grounds of gender, marital status or sexual orientation, paving the way for lesbian, gay and unmarried couples to avail of assisted human reproduction services.
The commission also tackles, for the first time in Ireland, the issue of the donation of sperm, eggs and embryos, recommending that this should be permitted. This should be subject to counselling for all concerned, to guidelines governing the selection of donors, age limits and appropriate limits for the number of children who could be born from a specific donor.
Donors should not be paid, said the commission, with the exception of reasonable expenses. The partner of the recipient of donated sperm should give a legal commitment to be recognised as the child's parent. If a donated egg or embryo is used in infertility treatment, the gestational mother should be recognised as the child's mother.
Children born with the help of a donor should, on maturity, know the identity of the donor. However, the donors should not be able to identify the children or set conditions on the use of their sperm or ova, except in intra-familial situations or where research is involved.
Another proposal likely to attract considerable discussion is that the use of surrogate mothers by infertile couples should be permitted. Again, the commission recommends that the child should, on maturity, know the identity of the surrogate mother and, if relevant, of the genetic parents. Legally, the child should be that of the commissioning parents.
The commission also recommends that national statistics on the outcome of assisted human reproduction techniques should be compiled and made available. Longitudinal studies of children born through such techniques should also be carried out with the consent of families, so that the impact of these major scientific developments can be studied.
Throughout its report, the commission recommends that all parties should have extensive professional counselling, and that the best interests of the children should be the primary consideration throughout all assisted human reproduction procedures.