The first steps in regulating assisted human reproduction will be considered at a major conference in Dublin today, writes Carol Coulter, Legal Affairs Correspondent.
During this week's controversy over the suitability of Michael Jackson as a parent and custodian of young children, little attention was paid to the legal framework that has allowed this to happen. There are many parts of the world where a man in his circumstances could not legally be a parent at all.
He told his interviewer, Martin Bashir, that the mothers of at least some of his three children were surrogate and had agreed to hand the children over to him. There is little doubt that this was a straightforward commercial relationship. There is no federal regulation of such relationships in the US, and the law varies from state to state.
Surrogacy is just one of the ways whereby couples and individuals unable to conceive naturally are seeking to have children and, as yet, is not known to be practised in Ireland. However, other techniques have now been with us for some years, but without any legal regulatory framework.
One of the best-known techniques for overcoming certain types of infertility, specifically female infertility, is in vitro fertilisation (IVF), where the woman's eggs are fertilised with her partner's sperm outside the womb and then implanted. This has been practised in the Rotunda Hospital for many years and is now also available in a few private clinics.
Artificial insemination has also been practised in Ireland. When this is insemination by the husband's sperm (AIH), it has attracted little controversy. However, when the husband has a fertility problem certain clinics also offer artificial insemination by donor (AID), and this is opposed by the Catholic Church.
Neither form of insemination is regulated by law although this area is subject to the ethical guidelines of the Medical Council and the Institute of Obstetricians and Gynaecologists.
Following the use of donated sperm in fertility treatment, the use of donated eggs has become common in certain countries, again notably the US. There it is even possible to seek to buy eggs on the Internet, complete with photographs and academic achievements of the donors.
These practices have given rise to scientific and ethical issues, notably the treatment of the human embryos created at the beginning of the IVF process. The bundles of cells created at the initial stage are termed by medical professionals as zygotes. In the Rotunda Hospital these are sometimes frozen.
This arises when the ovaries, stimulated by fertility drugs, produce five or six eggs. If they are all successfully fertilised, five or six zygotes are created.
It is considered dangerous to both mother and potential foetuses to implant them all in the womb, and it had been the practice to implant some in the womb and some in the neck of the womb, where they would not survive. However, recently the Rotunda decided to freeze the unimplanted zygotes and use them for a second implantation, thus avoiding the necessity for a further gruelling round of fertility drugs for the mother.
This technique is opposed by the Catholic Church, which fears that it will lead to the destruction of unused zygotes. It also fears that the technology permits embryo experimentation.
Certainly, the Rotunda has acknowledged that there might be circumstances where they might not be implanted, if, say, the couple separated or the woman died. The couples participating in the programme sign an agreement that in such circumstances the zygotes will be "thawed without transfer", that is, they will die.
This technology has paved the way for stem cell research, which has also attracted opposition from a number of quarters. This is research on the basic human cells created by in vitro fertilisation in order to identify, and hopefully be able to treat, certain congenital disorders.
And then there is cloning. This is illegal in the UK and likely to become so throughout Europe. Claims that human cloning has taken place in the US remain unproved, and scientists are highly sceptical of them, but the issue will not go away.
NONE of this is regulated in Ireland. All that stands between us and the possibility of, for example, a commercial agency offering a surrogacy service for a large fee, or a commercial company using zygotes for scientific experiment, is the "pro-life" amendment to the Constitution and the Medical Council's ethical guidelines. The constitutional protection offered to "the unborn" does not, however, define the unborn.
The Government attempted to do so in the last proposed amendment on this subject by defining the unborn as the implanted fertilised egg, but this was defeated, leaving a definition to a future Supreme Court in the event of a challenge. The Medical Council guidelines deal essentially with IVF.
This yawning gap in our regulatory infrastructure was recognised by the last government, which set up the Commission on Assisted Human Reproduction, under the chairmanship of Prof Dervilla Donnelly.
The setting up of the commission also served the useful purpose of removing these contentious issues from the amendment debate.
In announcing it, the Minister for Health, Mr Martin, said it was intended to serve two purposes: to provide the medical, ethical and legal expertise necessary for a detailed examination of the possible approaches; and to prepare a report which would provide the basis for an informed public debate before the finalisation of any proposals. So legislation is clearly still a long way off.
The first step towards the informed public debate takes place tomorrow, with an international conference organised by the commission on the medical, legal and social issues. Among the speakers will be Baroness Warnock, the British moral philosopher who chaired the Warnock Committee of Inquiry into Human Fertilisation and Embryology. Its report provided the basis for the UK legislation in this area, which has been broadly followed in a number of other countries.
Other speakers are the former attorney general, Mr John Rogers SC, Dr Brendan Purcell, senior lecturer in philosophical anthropology in UCD, and Prof Ken Daniels from New Zealand, an expert on the psycho-social aspects of donor conception.