It has been 15 years since the State was told to legally protect the rights of families using ‘non-traditional’ conception methods.
SHORTLY AFTER THE marriage equality referendum passed in 2015, Ranae von Meding became pregnant with her first child.
“We used my wife Audrey’s eggs and I carried our child,” von Meding says. “We were under the assumption that we would be treated the same as any other married couple. We were having our family and were in a happy little bubble.
“But then we found out that there was no legislation covering reciprocal IVF – where one female partner provides the eggs and the other carries the baby – for same-sex couples.
“To this day, Audrey is not recognised in Irish law as the mother to our children because she did not give birth, and that means our children do not have the legal protection of having two parents.”
She and her wife are among thousands of people both in same-sex or in opposite-sex couples who, under current legal provisions, do not have the same rights as other parents because of how their children were conceived.
On May 5, new laws commenced under the 2015 Children and Family Relationships Act (CFRA) which broaden the rights of children and parents conceived through donor-assisted human reproduction (DAHR) in so-called ‘non-traditional’ families. But clinicians, legal experts and parents say that legislation for children conceived outside male-female sexual intercourse still falls far short.
Over the past three months, Noteworthy has been examining why there has been so little tangible progress in overhauling Ireland’s laws around surrogacy and egg or sperm donation.
Our investigation shows that:
Fertility doctors have huge concerns about the lack of legal guidelines around surrogacy and other forms of assisted human reproduction.
There is particular concern around how a donor-conceived child may discover information about their parentage after they turn 18.
The lack of legislation around aspects of assisted human reproduction has left some children in legally precarious situations. One child born in Spain to a same-sex female couple, including an Irish mother, remains stateless. All male same-sex couples remain excluded from being jointly recognised as parents.
There remains significant confusion about the parental status of same-sex female couples who undertake reciprocal IVF, where one partner provides the egg and the other partner carries the pregnancy. The Department of Health has provided a note to fertility clinics indicating that these women would have full parental rights but has given conflicting advice to parents and could not provide any clarity to Noteworthy.
Correspondence released to us through Freedom of Information reveals tensions regarding the legislation between Regina Doherty, the former minister for social protection and employment affairs, and a proponent of legislative reform on this issue, and former minister for Justice Charlie Flanagan and his officials, who took a much more cautious approach.
Following engagement with fertility clinics, then minister for health Simon Harris made the decision to further delay commencing parts of the laws around donor-assisted human reproduction because couples going through fertility treatments could be negatively impacted.
Representations from conservative groups opposing assisted human reproduction (AHR) comprised only a small part of the correspondence received by ministers and presented to the Oireachtas health committee, with most of the letters and emails coming from parents and prospective parents concerned about the lack of legal recognition from their families. Conservative lobby groups appear to have had relatively little impact on this legislative process.
Rights for families whose children were conceived using donor eggs or sperm, or through AHR, were discussed as far back as Michael Noonan’s tenure as minister for health in 1996.
Shelved for a decade
The Commission for Assisted Human Reproduction, set up by the Taoiseach Micheál Martin when he was minister for health, reported in 2005, but uncertainty around the constitutional status of embryos created during IVF and a lack of political will left it sitting on the shelf for around a decade.
The general scheme of the AHR Bill was approved and published by the Government in October 2017. Throughout 2018 and into early 2019, members of the public and interest groups were invited to give submissions. The joint committee on health published its report on pre-legislative scrutiny of the general scheme of the AHR bill in July 2019, but the bill did not make it over into law before the dissolution of the Dáil in January.
Legislation around assisted human reproduction and parental rights remains limited.
Ireland and Lithuania are the only two countries in the European Union which do not provide public funding for fertility treatments. While the last Government committed to providing €2 million to help people with fertility difficulties, the then minister for health, Simon Harris, said it may “realistically” be 2021 before IVF is available through the public service, because an AHR act needed to be in place first.
Dr Conor O’Mahony, UCC law lecturer and the Government’s Special Rapporteur on Child Protection, has been asked to review issues relating to surrogacy and LGBT+ parenting.
The Supreme Court has repeatedly admonished the legislature for its failure to fully legislate in this area.
On May 5, 2020, parts 2 & 3 of the Children and Family Relationships Act (CFRA) were commenced after a five-year delay. These sections allowed for two female parents to be recognised as the legal parents of a child conceived through physician-assisted human reproduction, provided that the egg or sperm donor is placed on a traceable register so that a child can find information on their genetic heritage when they turn 18.
‘Some parents are recognised, some are not’
“The law as it stands remains very restrictive,” says von Meding. “The new legislation changed nothing for us. Before May, no LGBT+ family had both parents recognised or connected to their children; after, some families do and others don’t, so while we were unequal before, we’re even more so now.
“Strict criteria have to be met: a same-sex female couple using an Irish fertility clinic for intrauterine insemination (donor or partner’s sperm inserted into a female’s uterus) or IVF using [the woman’s]own eggs is recognised. Audrey and I used reciprocal IVF – with one mother providing the eggs and one mother carrying and giving birth to the baby – and Irish law only recognises the birth mother.”
In a recent explanatory note sent to clinics, seen by Noteworthy, the Department of Health said that “in reciprocal IVF, the man who donates sperm in the DAHR procedure is the only donor” and that “under the Act, the second parent of a child born from DAHR is the spouse, partner or civil partner of the mother… a parent shall have all parental rights and duties in respect of the child born as a result of the DAHR procedure”.
However, the note is headed with a significant caveat: “This note is for information only and does not purport to be a legal interpretation of the Act.”
“We were told in no uncertain terms that we would not be covered under legislation,” says von Meding. “It was one of the big issues we discussed in our meeting with Simon Harris. We have a legal case against the Government about this, but the Attorney General just came to back us recently saying that we are covered. So we have put in our application to be jointly recognised as parents and are now told we have to wait until September as the courts won’t be processing before then [due to coronavirus].”
Noteworthy asked the Department of Health to clarify the legal situation regarding reciprocal IVF. Over seven working days later and despite multiple follow-ups, the department was unable to provide us with a response on this issue.
“It’s not covered. And then it is. There is no clarity,” says von Meding. “And they haven’t reached out to any of the people affected – like me and my wife – who were the ones querying it in the first place.”
Dr Brian Tobin, a law lecturer at NUI Galway with expertise in family and child law, believes that the legislation excluded reciprocal IVF partially because of a lack of knowledge about the practice and partially as a result of a 2009 legal case, McD vs L. This involved a female same-sex couple who asked a gay male friend to be a sperm donor. The couple fell out with the man and tried to move to Australia, but he successfully went to court to stop them and was awarded access rights to the child.
“In 2015, it was decided that excluding known donors meant that two female parents could be recognised without interference,” he says.
“This was done in good faith, but reciprocal IVF was a casualty. The legislation continues to see a genetic mother as a ‘known donor’ but simple amendments could allow reciprocal IVF to be embraced.”
Dr Lydia Bracken, assistant dean and law lecturer at the University of Limerick and the author of Same-Sex Parenting and the Best Interests Principle, says that the legislative gaps and prohibitions are an issue of childrens’ rights.
“Socially, it says these families are lesser, but it also places children in a vulnerable position. If a parent is not recognised, they have no decision-making powers around medical issues and they, for instance, can’t sign consent forms for class trips. The child of an Irish parent may lose out on their passport, citizenship, and inheritance rights.
“The CFRA does include provisions to allow someone to become a guardian, but they have to have cared for the child for two years before they become eligible, and guardianship ends when the child turns 18.”
Gay male couples remain excluded from the legislation. Daragh Nener-Lally met his partner, an Israeli citizen, in 2010. They had a civil partnership in Ireland in 2013 and got married shortly after the 2015 marriage referendum. They began the process of having a child in 2015.
“We went with a US surrogate because it seemed to offer the greatest peace of mind,” says Nener-Lally. “In Minnesota, we could get a birth cert for our child that has our names on it. But this birth cert is not recognised in Ireland which is very frustrating for us, so we can’t get an Irish passport for our daughter without being asked to sign an affidavit stating that one of us is a legal stranger.”
A surrogate is carrying a child for Nener-Lally and his husband. The baby – who will be genetically related to their first daughter – is due around the end of September.
“All we want for our family is recognition of a valid birth document from a country that Ireland has diplomatic relations with,” says Nener-Lally. “I feel let down by my country.”
While there is limited research on surrogates in Ireland, a 2018 survey of 90 countries, carried out by the international organisation Families Through Surrogacy, suggested that Ireland had the second-highest rate of surrogacy per capita in the world.
Tobin says that it is “primarily heterosexual couples who avail of surrogacy”. While international data on surrogacy is relatively scarce, evidence from the Huddersfield Repository, the UK’s Surrogacy Working Group on Surrogacy Law Reform, and the global regulatory framework which mostly prohibits same-sex couples from availing of surrogacy, suggests that the majority of people availing of surrogacy are heterosexual.
Most children born to a surrogate commissioned from Ireland were born overseas because Ireland currently has no regulations on surrogacy. Today, Ukraine – where only opposite-sex couples can avail of surrogacy – is a popular location.
As far back as 2005, the Commission on Assisted Human Reproduction recommended that the intending parents, rather than the surrogate, should be the legal parents. In 2014, the Supreme Court ruled that a genetic mother was not entitled to be registered as the legal mother to a baby which her sister carried as a surrogate – despite the surrogate fully supporting her sister.
The legislature has yet to act.
In the intervening five years since the CFRA, progress was slow but there was a sense of momentum.
In May 2019, parents around Ireland were eagerly awaiting the implementation of parts 2 & 3 of the CFR within weeks. They were about to be bitterly disappointed.
On May 23, 2019, representatives from Fertility Clinics of Ireland met with officials from the Department of Health. Following this meeting, they wrote to Harris expressing concerns that patients who had initiated treatments would be unable to continue beyond July if the law came into place.
Harris listened and acted on this clinical advice. On July 11, he wrote to the then minister for justice Charlie Flanagan, and announced that parts 2 & 3 would now be delayed until May 5, 2020. “[This] allows time for individuals or couples to plan to use donor gametes that they have already purchased and stored for future use,” Harris said.
Meanwhile, Minister for Social Protection & Employment Affairs, Regina Doherty, was championing legislation to address parental rights.
Between May and July 2019, Doherty and Minister for Justice Charlie Flanagan wrote back and forth to each other, often in terse correspondence, about commencing part 9 of the CFRA, which deals with the consent of an intending mother who has a child through donor-assisted human reproduction.
30 May 2019: “Dear Charlie… This mainly affects female same-sex couples who will now be able to have the particulars of the second partner in the relationship registered, using the gender neutral term ‘Parent’, in the register of births,” Doherty wrote.
“You will recall that I received Government approval to fast-track this legislation as a priority at a time when the only other legislative proposals being considered were those related to Brexit.”
Doherty told Flanagan that as the legislation had been enacted, it was vital that he allow the relevant sections of Part 9 (relating to registration of births of donor-conceived children) to commence “immediately”.
27 June 2019: In a response, Flanagan wrote that, “as you are aware”, his department were wary of commencing the provisions of Part 9 without Simon Harris’s department having signed off on parts 2 & 3.
Flanagan sought the advice of the Office of the Attorney General as to whether there may be any legal difficulties could arise if those sections of Part 9 were to be brought into operation ahead of Parts 2 & 3. Having considered the AG’s advice – which was redacted in correspondence sent to Noteworthy under Freedom of Information – Flanagan said he would not make the commencement order for part 9.
9 July 2019: Doherty was not placated. “I would point out that there has already been a very long delay in commencing this legislation,” she replied.
29 July 2019: In a letter, Flanagan said that Part 9 would commence in October 2019, although it could not be fully operable until May 2020, when parts 2 & 3 of the Act came into effect.
Who has been lobbying on the issue?
Over the past six years, the departments of health, justice, social protection and foreign affairs received a significant amount of correspondence from members of the public and interest groups on the topics of AHR and parental rights. Noteworthy has sifted through much of these submissions, released to us under a series of Freedom of Information requests.
At the early stages of the process, fertility clinics appear to have felt left out in the cold. In February 2015, Dr David Walsh, medical director of three of Ireland’s nine SIMS fertility clinics, expressed disappointment to the then minister for children, James Reilly, that he and colleagues were not consulted.
In February 2015, the late Professor Robert Harrison – widely regarded as the pioneer of fertility treatments in Ireland – wrote to the minister for children and youth affairs “with a degree of urgency” on behalf of the Institute for Obstetricians and Gynaecologists.
“We are alarmed at the suggestion that a donor-conceived person applying for a birth certificate after the age of 18 will be informed that there is extra information available about them,” he said.
“This is not in line with international practice in countries such as the UK where anonymity is disallowed. There is undisputed evidence that the MOST devastating thing for those who are donor conceived is to find out at an older age that they were donor conceived. If they find out after the age of 18 (at 30, 40, 50!!!) that their parents have been withholding crucial information it could be devastating – far more damaging than not being able to trace the donor.”
Five years on, it’s a concern that Professor Mary Wingfield, founder and clinical director of Merrion Fertility; associate clinical professor in the Department of Obstetrics and Gynaecology at UCD; and one of Ireland’s leading experts in subfertility, shares.
“How do we relay this information to someone?” she asks. “There is no guidance. The safest way to do it is for people to be able to apply for it, not have it given without having asked.”
In February 2018, further submissions on the general scheme of the AHR Bill were submitted to the Oireachtas Joint Committee on Health by 33 individuals and interest groups, including doctors, legal experts, fertility counsellors, bioethicists and LGBT and conservative campaign groups.
Three Christian organisations opposed to assisted human reproduction and LGBT parentage, including the Alliance for the Defense of the Family & Marriage, Human Life International and the Iona Institute provided submissions against.
Dr Joanna Rose, a donor-conceived woman who campaigns for the rights of donor-conceived children after learning that the man raising her was not her genetic father, made a submission alongside Emma Friel, an assistant psychologist with the HSE.
They said that “given… the discontent among the [donor-conceived] community, it must be seriously questioned whether DAHR has any place in a humane and just society”. They also called for parts 2 & 3 of the CFRA to be commenced “without further obfuscation”.
Other submissions raised potential ethical and legal issues but were generally in favour of legislative change.
One mother wrote to Doherty about how she has had “sleepless nights” as her wife cried because she is not recognised as a parent to their son. Several same-sex parents wrote of their distress at not being recognised on their child’s birth cert and of how one of them is considered a “legal stranger” to the child they were raising.
In 2017, a woman wrote to the then minister for children and youth affairs, Katherine Zappone, about how she lacked any parental rights because she and her husband were using a surrogate after enduring six years of IVF, 12 embryo transfers and four miscarriages. She said that she was not entitled to any state benefits during unpaid leave and would not be able to apply for guardianship and adoption of her own child for several years.
Children left in limbo
Another wrote to the Simon Coveney, Minister for Foreign Affairs, in January 2019, about how, in order to secure a passport for their child, her wife was asked to sign a sole guardian affidavit in the presence of a solicitor or commissioner for oaths, stating she was the sole guardian of their child and had not entered into any arrangement with any other person to in relation to parental responsibility (such as her wife). The minister’s office advised that he was bound by the 2008 Passports Act and the legal meaning of guardianship.
Sinn Fein president Mary Lou McDonald wrote to Doherty asking when legislation might be published.
Fine Gael TD Kate O’Connell, who lost her seat at the last general election, wrote on behalf of a family with one Irish and one UK parent, expressing concern that Brexit could have implications as only the British parent is recognised on the birth cert.
Joan Collins, Right to Change TD for Dublin South Central, and Fianna Fáil senator Catherine Ardagh – then an election candidate in the same constituency – wrote to Coveney concerning the case of Sinéad Deevy and her Polish wife Kashka Sankowska, whose daughter has been effectively left stateless. Sankowska gave birth to the child and so is recognised in Irish law as the mother, while Poland will not recognise a birth cert with same-sex parents. The family has not been able to get an Irish passport for their daughter and so cannot bring her to Ireland.
Coveney told Collins that “an emergency travel certificate may only be issued to a person where that person is an Irish citizen or there is reasonable cause to believe that the person is or may be an Irish citizen”.
During the course of this investigation, some parents and prospective parents questioned whether conservative lobby groups such as the Iona Institute or the Alliance for the Defense of the Family and Marriage had been working to scupper or delay legislation. However, it appears that the Government has been primarily guided by fertility and legal experts as well as correspondence from parents in favour of legislative change.
In March 2015, now retired Fianna Fáil TD John Browne forwarded an email from the late Nora Bennis, a long-time campaigner for traditional Catholic morality, to the Department of Children and Youth Affairs. Bennis said that the constitutional definition of “family means a family based on marriage of a man and a woman” and could not be changed, although it was indeed changed by referendum just over two months later. There is no record of a reply from the DCYA.
The Department of Social Protection received one email opposing legislative change from an individual who was against all forms of AHR because it involves the destruction of embryos. This individual appears to be the only person that the Department of Social Protection did not respond to.
But if conservative lobby groups didn’t delay the legislation, what else might have?
“It is hard to know why AHR legislation is taking so long,” says Wingfield. “The CAHR, of which I was a member, produced its report in 2005. Irish society has changed so much from a time that people wouldn’t talk about AHR and embryos, but one of the problems is that there isn’t a big patient lobby group because infertility is distressing and a very personal and private thing and people have enough to cope with just getting through it.”
Bracken believes that may be “a lack of political will because this takes a lot of work to get right… we have been talking about it for a long time”.
Senator Ivana Bacik, who has made major contributions to the Oireachtas debates around childrens’ rights and assisted human reproduction, has repeatedly raised concerns about the delays. “It has been very slow coming,” she told Noteworthy.
“It is complex: if you regulate surrogacy, how do you penalise those who don’t follow the regulations, because if you penalise parents, you penalise children. There is no conspiracy but there has been a lack of political prioritisation.”
A spokesperson for the Department of Health said: “Given the comprehensive scope of the legislation and the ethical, legal and social issues which arise from AHR practices, certain areas of the General Scheme are being given further consideration and refined accordingly during the ongoing process of drafting the bill in conjunction with the Office of the Attorney General.
“It is not possible at this time to give a definitive timeline for the publication of the [AHR] Bill and its subsequent passage through the Houses of the Oireachtas,” they added, but noted that the Programme for Government “affirms the Government’s intention to enact this legislation”.
This scheme envisages an AHR authority. “It should be noted that the provisions within the General Scheme do not include the regulation of Irish citizens involved in international commercial surrogacy agreements in other countries,” the Department added.
A case of the cart before the horse?
“The CFRA was rushed through before the 2015 marriage referendum but, ideally, legislation on donor-assisted human reproduction would have followed an AHR act,” says Wingfield. “Most people accept that the cart was put before the horse.”
Wingfield says that there remain many legal uncertainties and that the lack of legislation puts Ireland’s doctors in an invidious position.
“Most countries place a limit on the number of children that can be born from a donor, which is important in a country the size of Ireland. Fertility clinics and embryologists have tried to control this over the years, but it is voluntary. There’s no legislation around IVF so how many embryos do we implant? What age limits should we adhere to?
“We follow international guidelines but there is no law. Because science moves so fast and the legislature can struggle to catch up, these are decisions that should be in the hands of an Assisted Human Reproduction Regulatory Authority rather than set in legislation.
“It is an ethically challenging and complex area, but that it makes it all the more important for clear guidelines – otherwise it is a free-for-all. People give out about doctors playing God but, in the absence of clear guidelines, we have to make these decisions.”
Due to the Covid-19 crisis, the Department of Health asked Noteworthy and other media outlets to withdraw Freedom of Information requests for a period of time in March. As a result, we have been unable to access significant portions of correspondence from the Department of Health. We have now relodged our requests and will update this story when we receive responses.
This investigation was carried out by Peter McGuire, edited by Susan Daly. It was proposed and funded by you, our readers, as well as with support from the Noteworthy general fund.
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