THE CHILDREN AND Family Relationships Act was signed into law by the President, Michael D Higgins, in April 2015, yet over three years later Parts 2 and 3 have not been commenced.
The government’s failure to do so means that the provisions of the 2015 Act that prohibit anonymous donor sperm from being used in Irish fertility clinics are not yet in force. Further, the National Donor-Conceived Person Register proposed by the 2015 Act to protect the donor-conceived child’s right to knowledge of genetic identity has not been set up.
The register would record the identifying details of the child’s donor, such as his name, date and place of birth, nationality and contact details, and such information would be made available to the child upon reaching the age of 18.
Information about donor
The upshot of the government’s ongoing inactivity in this area is that Irish fertility clinics can continue to use anonymous donor sperm imported from abroad to help their clients to conceive a baby and, upon reaching adulthood, that donor-conceived person will never be able to access any information about their donor.
This is unacceptable in a country where the people voted to insert express protection for children’s rights into the Constitution in 2012. Under Article 42A, the State affirms the ‘natural and imprescriptible’ rights of the child and promises, by its laws, ‘to protect and vindicate those rights.’
One imagines the right to knowledge of one’s genetic parentage, something so fundamental to each individual, must surely constitute one of the ‘natural and imprescriptible’ rights of the child. It is arguably a corollary of the child’s right to know its natural mother as enunciated by the Supreme Court in 1998.
Genetic identity
By failing to commence Parts 2 and 3 of the 2015 Act, how is the State ‘by its laws’ protecting and vindicating this constitutional right for all children who are donor-conceived?
Both the Supreme Court and the European Court of Human Rights have long-since recognised the importance to a child of accessing information about their genetic identity. Indeed, as far back as 2005, the Report of the Commission on Assisted Human Reproduction recommended to the Oireachtas that all Irish donor-conceived children should, on maturity, ‘be able to identify the donors involved’.
Recent studies on donor-conceived children reveal that an overwhelming number of such individuals want information relating to their donor; there is also growing international evidence that identifying information about one’s genetic parentage can be essential to the mental health of donor-conceived persons.
This is why countries like the Netherlands, Norway, Sweden, Switzerland, Finland, New Zealand and the UK prohibit anonymous sperm donation.
Mixed views
Irish fertility experts have mixed views on the proposed ban on anonymous donor sperm contained in the 2015 Act, with some clinicians for, and others staunchly against.
Some clinicians choose to ignore the phenomenon of children’s rights, and would prefer that their adult clients retain the right to use anonymous donor sperm to conceive a child – of course they would adopt such a position – assisted human reproduction is big business for the private fertility clinics and they do not want any potential clients deterred.
In addition, if Parts 2 and 3 of the 2015 Act were enacted, such clinics would have to radically alter their practice and start importing sperm from those countries that respect the child’s right to genetic identity by only permitting the non-anonymous donation of sperm. At present, the vast majority of sperm used in procedures that take place in Irish fertility clinics is imported from countries where there is anonymous donation, ie Spain.
However, forcing the fertility clinics to adapt their practice is far more acceptable than that clinical practice which is currently allowed – the creation of children who will never be able to know who their genetic parents are.
‘Transition period’
In March 2015, the then Minister for Justice and Equality, Frances Fitzgerald, together with the then Minister for Health, Leo Varadkar, assured the Dáil that Parts 2 and 3 of the 2015 Act would not be commenced for a ‘transition period’ of one year to ‘give clinics time to prepare for the new regulatory framework.’
This dispensation was understandable. However, it is now over three years later and private enterprise has been indulged at the expense of children’s rights for long enough. The commencement of Parts 2 and 3 of the 2015 Act is the responsibility of the current Minister for Health, Simon Harris, and it must occur as soon as possible.
Perhaps the Minister for Children and Youth Affairs, Katherine Zappone, who is currently and admirably attempting to champion the rights of adopted children in the context of identity rights, can spare a thought for donor-conceived children and finally spur her colleague into action?
Dr Brian Tobin is a Lecturer in Law at NUI Galway.
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