Earlier this month, Minister for Health Simon Donnelly received Cabinet approval to forward the Assisted Human Reproduction Bill 2022 to the committee on health for review in January. This marks a milestone in Irish medical law. But what is the AHR Bill about? Given where all the attention has focused, one could be forgiven for thinking it is about surrogacy and international surrogacy at that. Because that seems to be all we are hearing about, from Government officials and the media.
Thousands of Irish people require AHR treatments every year. One in six heterosexual Irish couples experience fertility problems and more than 50 per cent of them need in vitro fertilisation (IVF). Others are contemplating single parenthood or are in same-sex relationships and require donor sperm or donor egg treatments. The AHR Bill will affect every one of these people. Yet their interests are not being debated.
In contrast, while surrogacy is undoubtedly an important and necessary medical procedure, it is required by relatively few. There are less than 500 cases annually in the UK and Wales. Extrapolating that to Ireland’s population would suggest less than 50 cases a year in this country. We perform more than 10,000 IVF-related treatments annually and thousands of cycles of donor-sperm treatment and egg freezing.
Even though they are essentially medical procedures, the legal, social and ethical complexities surrounding them demand that there is greater legislative oversight than is required for general medical and surgical procedures
All of these elements of AHR require legislation and regulation. Even though they are essentially medical procedures, the legal, social and ethical complexities surrounding them demand that there is greater legislative oversight than is required for general medical and surgical procedures. Ireland has been criticised many times for being one of only three EU countries that do not have an AHR law — the other two being Bulgaria and Romania. The AHR Bill 2022 is therefore welcome and Mr Donnelly is to be commended for his commitment to making it law.
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Together with many of my medical and scientific colleagues, however, I am concerned that there are important issues in the Bill that need amendment and that these issues, which affect so many, are not receiving the attention they require. They are being overshadowed completely by the surrogacy debate, particularly in the media. Indeed, the general AHR legislation has been delayed for almost two years because of the decision to include international surrogacy.
A major issue of concern to those of us working in the field is a failure to future-proof the Bill to allow for evidence-based new AHR treatments and techniques that will inevitably come on stream soon. AHR is one of the most rapidly progressing fields in medicine and developments in AHR intersect those in genetics and cancer care. Even since the Bill was drafted, fertility techniques have changed so much that many sections of the Bill are now out of date. Our legislators must ensure that restrictive terms are not included in this primary legislation. Specific clinical detail should be moved to secondary legislation or codes of practice provided by the proposed AHR regulatory authority.
The Bill introduces important regulations around donor-sperm and donor-egg treatments. This has become increasingly important as the public funding of donor AHR treatments is contingent on having this legislation in place. Excellent aspects of the Bill include provisions for counselling, a limit on the number of families allowed from one donor and limits on the age of donors at the time of donation. However, certain other parts of the Bill could be viewed as discriminating against those who use donor sperm or eggs. If a person or couple have embryos in storage which were made from donor eggs or sperm and if the donor dies, that person or couple will not be allowed to use those embryos, even if they already have a child who was also conceived using the same donor sperm or eggs. They will have to consider new cycles of expensive treatment and they will now be inevitably older and less likely to be successful. Their embryos will be wasted. The provisions for compensating altruistic sperm and egg donors are restrictive and not in keeping with those proposed for surrogates or with those accepted as good practice internationally. To expect any woman to donate eggs — a procedure requiring multiple clinic appointments and at least two days off work — without compensation for loss of earnings is, in my view, disrespectful to those women.
Men, however, will not be allowed to use such embryos if their female partner dies. This could be particularly important for men who already have a child who was conceived using their now-deceased partner’s eggs
Men may feel discriminated against by the provisions of the Bill about the posthumous use of embryos. The Bill will allow women (whether they are in a heterosexual or same-sex relationship) to use any stored embryos they have if their partner dies and if that partner had consented to this before death. Men, however, will not be allowed to use such embryos if their female partner dies. This could be particularly important for men who already have a child who was conceived using their now-deceased partner’s eggs — having a sibling could be something they wish for that child. In this case, the man would need to engage in surrogacy. It seems inconsistent to me that AHR treatment (including surrogacy) would be allowed for single and same-sex men and transgender women but not for a man whose partner has died and who has embryos stored already. Thankfully, not many people of reproductive age will have to consider posthumous reproduction but, in my experience dealing with people undergoing IVF, the fate of their embryos should one partner die is an issue of immense importance to them. In a survey performed by Merrion Fertility Clinic, of more than 1,000 people undergoing IVF, the majority felt that men, like women, should be allowed to use embryos posthumously. This is allowed in the United Kingdom.
Ireland has been considering AHR legislation since the year 2000 when our current Tánaiste Micheal Martin, who was then minister for health, set up a commission on assisted human reproduction. I was honoured to be a member of that commission and I am delighted to see that now, almost 20 years later, AHR legislation is finally becoming a reality. However, as the Bill progresses to committee stage, the varied needs and concerns of all those accessing AHR treatment must be debated and considered. It’s not just about surrogacy.
- Mary Wingfield MD FRCOG is a retired consultant obstetrician gynaecologist and former clinical director of Merrion Fertility Clinic