The Medical Council's decision to allow the donation of surplus IVF eggs opens up complex legal problems, writes Carol Coulter, Legal Affairs Correspondent
'If couples have validly decided they do not wish to make use of their own fertilised ova, the potential for voluntary donation to other recipients may be considered."
This statement, in the latest edition of the Medical Council's Ethical Guidelines, is contained in the section on genetic testing and reproductive medicine. It means that there are now no medical obstacles to an infertile couple seeking to use the fertilised eggs, produced through IVF, of another couple.
This has huge implications for the definition of the family in Ireland and raises the possibility of disputes about the parentage of children born in this way and the rights of biological and nurturing parents and the children themselves.
Fertilised eggs, known as zygotes or pre-embryos (though sometimes the more general term embryo is used), are produced because a woman's ovaries are stimulated to produce a number of eggs when she undergoes IVF treatment. These extracted eggs are then fertilised by her partner's sperm in order to produce pre-embryos.
About five or six eggs are normally produced in this procedure. It was considered unsafe to implant such a number in the woman's womb, so two or three were normally implanted, with the remainder implanted in the neck of the womb, where they had no chance of survival. If the IVF procedure failed, the woman then had to undergo another hyperstimulation of the ovaries and the production of a new collection of eggs, and the procedure was repeated.
This was regarded as wasteful and is extremely stressful for the woman, so a different method arose, of freezing the surplus embryos for use in a later IVF attempt. This is now practised in the Rotunda hospital, the foremost centre for IVF in Ireland.
However, circumstances can arise where the surplus fertilised eggs are not implanted, either because the first IVF attempt was successful and the couple did not wish to continue with another, or because of the death of one partner, or their separation. In the Rotunda, couples have signed an agreement that in such circumstances, or following a number of years, the fertilised eggs could be "thawed without transfer", which effectively meant that they died.
The new provision in the ethical guidelines offers a further option - the donation of these fertilised eggs to another couple, where they would be implanted in the woman's womb and she would give birth to the child or children. This could arise where hyperstimulation of this woman's ovaries was not advisable for medical reasons.
The question then arises - who are the parents of this child? The old legal principle was that the woman who gave birth to the child was the mother, but this link has been potentially broken by the new reproductive technologies. The Australian state of Victoria has introduced a presumption that the woman who actually gives birth to the child is the mother of the child, and that the egg donor is not the mother. At the moment, that presumption is also likely to operate here.
The Constitution was written before any of this technology was even dreamed of. Its articles dealing with the family, defined as based on marriage, stress its central role in society, and its right to special protection. It is likely that the birth of a child into a family unit consisting of a married couple, whatever the origins of the genetic material, would be afforded the protection guaranteed to the family.
However, this does not exhaust the matter. The right of a child to know the identity of its natural parents is part of developing international human rights law.
This has a growing relevance in the light of genetics, where susceptibility to certain diseases is now known to be genetically transferred. So does the right of a child to know the identity of its parents mean the law should provide for knowledge of the identity of sperm and egg donors?
At the moment the law on adoption is being revised to provide for adoptees to have access to information on their natural parents.
However, the law on adoption is based on the adoption of born children. There is no provision for the adoption of the unborn, though the unborn does enjoy protection of its right to life.
The very term "adoption" is likely to prove controversial, as adoption law is based on the best interests of the child. Infertility treatment is based on the needs of the couple, and the use of a donated egg is likely to come from an attempt to treat infertility. Issues of screening potential parents are likely to arise.
It is likely that agreements will have to be drawn up between the biological parents, who donate the fertilised eggs, and both the medical institution involved and the receiving parents, to clarify the rights of each set of parents and of any child or children who might be born.
No legal framework exists at the moment for such an agreement, and the courts could reject it as overriding fundamental legal principles or as "contrary to public policy".
The experience of other jurisdictions is that this whole area is fraught with potential problems. Since 1990 the law in the UK has permitted surrogacy arrangements, provided they are not based on a commercial deal.
However, it has not so far dealt with the transfer of embryos, and there have been disputes about the ownership, following the breakdown of the the marriages of the couples who generated them. There has also been the highly publicised case of a white couple giving birth to black twins following a mix-up in an IVF clinic.
All these cases raise fundamental issues concerning the nature of the fertilised egg. At one extreme it is seen as a human being with all the rights that flow from this, while at the other it is seen as the property of those whose genetic material it contains, and therefore theirs to dispose of.
These issues are under consideration by the Commission on Assisted Human Reproduction whose report is overdue. At the moment, however, the Medical Council is making the running.