The committee is meeting to hear a briefing by Department of Health and Children officials on the report of the Commission on Assisted Human Reproduction. I welcome committee members and also Mr. Brian Mullen, principal officer; Mr. Liam McCormack, assistant principal officer; and Mr. Peter Hanrahan, assistant principal officer and former secretary of the commission. I invite Mr. Mullen to provide a short briefing on the report. Questions from members will follow.
Report of Commission on Assisted Human Reproduction: Presentation.
Mr. Brian Mullen
I thank the committee for giving us the opportunity to brief it today on the report of the Commission on Assisted Human Reproduction. The chairperson of the commission remarked at the launch of the report in May that the next step in the process was a public discussion of the report's contents and recommendations. The Government recognised this and agreed to refer the report to this committee to consider and report in due course on the recommendations of the commission. The committee was considered an appropriate forum for this purpose as it would provide an opportunity to subject the report to a democratic and structured political analysis and scrutiny.
The genesis of the commission is awareness that an ever expanding range of assisted human reproduction, AHR, procedures were being practised in Ireland. These developments were made possible by advances in medical technology, but there is no legislation in Ireland governing the intervention in the natural process of creating human life. There was growing public concern at these developments and in view of their complex and potentially controversial nature, the then Minister for Health and Children decided that the establishment of a commission on assisted human reproduction would be an essential first step before any policy proposals are propounded. The then Minister established the commission in March 2000. Its terms of reference were: to prepare a report on the possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in this area.
The Commission on Assisted Human Reproduction was comprised of persons with expert knowledge spanning the medical, scientific, social and legal domains; this expertise was a prerequisite to a precise examination of the issues concerned. In addition, the chairperson of the commission invited a number of additional experts with complementary expertise in specific areas to join work groups. These groups were established to explore particular aspects of AHR and included experts and academics from sociology, philosophy, ecumenism and theology. The commission was independent throughout in carrying out its work.
The commission has conducted an intensive and analytical examination of AHR issues and its conclusions derive from this wide research. Its report was prepared after 23 meetings. The early meetings were devoted to an exchange of information between commission members; each discipline — medical, scientific, legal and social — prepared a report outlining the current position on AHR in that discipline.
In its letter of establishment, it was indicated that the commission would be expected to consult widely, to seek submissions from the public and to establish the views of service providers and consumers. It was also expected to consult with philosophical and theological experts and with relevant people in Northern Ireland and Great Britain. In delivering on this aspect of its remit it consulted users of AHR services through a survey organised through the National Infertility Support and Information Group; placed an advertisement in the national press inviting members of the public and interested organisations to make submissions, to which more than 1,700 responses were received; recruited a market research organisation to carry out a survey of a random sample of 1,003 people aged over 15 years; conducted a survey of the services provided by 1,163 general practitioners for infertile couples; conducted a survey of 114 obstetricians-gynaecologists in maternity hospitals-units; conducted a survey of the then eight clinics providing AHR services in Ireland; and contacted the chief executive officers of the health boards to ascertain their involvement in the provision of AHR services.
The Northern Ireland element of the consultation process was largely met by the appointment of a person from there to the commission and the chairperson visited the Human Fertilisation and Embryology Authority in England. In addition, the commission held two conferences, the first of which was a small conference of invited experts and the second a public conference of more than 250 people held in Dublin Castle.
The commission has made 40 recommendations on AHR services in Ireland. Its dominant recommendation is that new legislation should be enacted governing services. This legislation should specify the procedures to be allowed and provide for the establishment of an independent statutory body accountable to the Minister for Health and Children that would have regulatory, advisory and executive powers over the permitted AHR services. This body would license storage facilities and clinical, laboratory and research procedures of AHR centres. In addition, it would be empowered to issue guidelines on the operation of the permitted AHR services.
The other main recommendations may be largely grouped under the following five general headings, the first of which is ethical and social issues. In this area, the recommendations are: no discrimination in access to AHR services on the grounds of gender, marital status, or sexual orientation — but at all times subject to the best interests of any children that may be born; and a presumption against treatment where there is a risk of harm to children that may be born.
On gametes, the male and female reproductive cells, that is, spermatozoa and ova, the recommendations are: current IVF practices to be endorsed and super-ovulation, that is, ovarian stimulation, to be allowed; and preconception sex selection to be allowed to prevent serious sex-linked genetic disorders.
On donor programmes and procedures, the recommendations are: the legal parents of children born through donor programmes to be the gestational mother and her partner; the child born through the use of donated gametes to be entitled to know, on reaching maturity, the identity of the donor(s) involved in his or her conception; payments for donations not to be allowed except for reasonable expenses incurred; and, in general, donors not to be permitted to attach conditions to donations.
On embryos, the recommendations are: pre-implantation genetic diagnosis, PGD, to be allowed to reduce the risk of serious genetic disorders or for tissue typing for serious diseases — PGD is a procedure intended to identify embryos with specific genetic alterations prior to the stage in IVF of transfer of the embryo to the uterus; reproductive cloning, that is, production of a human being genetically identical to another, to be prohibited; regenerative medicine, or therapeutic cloning as it is probably more commonly known, to be permitted under regulation; surplus embryos can be frozen and subsequently allowed to perish in defined circumstances; embryo research, including stem cell research, to be allowed, but tightly controlled, on surplus embryos donated for such purposes; generation of embryos specifically for research to be prohibited. One member of the commission made a formal expression of dissent in respect of the recommendations that envisage the deliberate destruction of the embryo.
On surrogacy, the process where a woman agrees to carry a child for another person, the recommendations are: that this be allowed, but should be regulated to protect the parties to any surrogate arrangement; the surrogate mother to be entitled to the reimbursement of reasonable expenses only; the child born from a surrogate arrangement to be entitled to know, on reaching maturity, the identity of the surrogate mother and the genetic parents, where relevant. One member of the commission made a formal expression of dissent regarding these recommendations on surrogacy.
Some of the issues examined by the commission are inevitably difficult and emotive for many people; the commission has acknowledged that using technology to assist human reproduction raises important ethical issues for our society. As the Tánaiste and Minister for Health and Children indicated on the launch of the report, a number of these issues and recommendations go to the very core of our concepts of human dignity and personhood. Therefore, I do not propose to comment on the recommendations which clearly will require decision by Government following its consideration of both the commission's report and the report of this committee. However, the commission reported that it approached its work from the platform that assisting human reproduction is a positive development in reproductive medicine as it offers the possibility of parenthood to involuntarily infertile people. In addition, it reported that the best interests of the child born though AHR were fundamental in the commission's priorities throughout its deliberations.
I hope the committee finds this brief overview of the commission's work and report useful. I hope to be able to address any questions the committee may have on the matter.
I thank Mr. Mullen for the presentation. Clearly, much work is ahead of this committee. I am led to believe there is a due date of April by which we must have our hearings concluded. In that regard, I will propose to invite the commission before the committee shortly to go through the report with the commission and then invite in people who have an interest in the debate.
I welcome the officials of the Department to the committee. Will they outline why the committee must have its report finished by April and how much of it we must have completed by that date?
I had a quick overview of the report and one or more members of the commission seem to dissent from only seven of its 40 recommendations. The other 33 appear to be straightforward and most of them are currently covered by guidelines from the Medical Council. Apart from some simple legislative housekeeping and, perhaps, the setting up of regulatory bodies, these 33 recommendations are not contentious. The seven recommendations marked with asterisks seem to be the ones that will cause the most difficulty.
Before we start on the issues, can we have Mr. Mullen's views on how far this committee can go in this regard? One issue that continually crops up in the report concerns Article 40.3.3° of the Constitution and when the unborn child gets the protection of the State. The argument is not whether the embryo is protected, but whether it is protected in vitro or in utero. Until such time as that decision is made — this committee cannot make that decision — we are in territory about which we can do nothing. The report states clearly: “Unfortunately the law currently lacks clarity on this important point. Clarification can only be sought in one of two ways, either an authoritative pronouncement from the Supreme Court on the meaning of the term “unborn” for the purposes of Article 40.3.3° or by way of constitutional amendment”. It seems, therefore, that the most contentious aspects of the report, possibly two or three of those marked with asterisks, cannot go any further until either the Supreme Court decides whether the unborn child is protected in vitro or in utero or until we have a referendum on the matter. Has this been discussed by the Department? It is important to do that so that this committee can know how far it can go on the issue.
There are other issues with which this committee can deal, for example, surrogacy. However, we cannot deal with issues concerning the Constitution which is the realm of the Supreme Court or the people.
Mr. Mullen
The issue of the unborn and when it is afforded the protection of Article 40.3.3° is discussed in detail in Appendix III of the commission's report. The Deputy is right that this issue runs through the report. Until there is clarification on the issue, the question of when the embryo is afforded protection and when human life begins is an issue crucial to the whole area of embryo research, destruction of surplus embryos and similar issues.
The answer to the Deputy's question is that the Department has not given any serious consideration to this issue. Clearly, the Government, following this committee's examination and in light of the commission's report, will consider the issue which is one of the most serious for consideration. The commission discusses the issue in Appendix III of its report and confirms that the only certainty is the "uncertainty" on the issue and concludes it cannot be resolved until we get clarification. It is crucial that it is discussed. The report raises constitutional issues in this regard and it will be given serious consideration by Government when it comes before it.
In some respects, this committee cannot make the decision. The decision must first be made by the Government.
Can we not feed into that decision?
I do not think so. We cannot make the decision. The Government should——
It is a recommendation rather than a decision.
Many of the recommendations in this report cannot be advanced until we deal with the constitutional issue. It is not just a legal issue and I cannot see how we can advance it further until the Government makes a decision on it. We can deal with the other 33 recommendations because they are straightforward. We can possibly deal with three or four of the recommendations marked by asterisks, but we cannot deal with the one concerning the destruction of the embryo, which is part of the IVF issue or with the issue of stem cell research. We cannot go further on those until the Government has made some decision on the future of Article 40.3.3° of the Constitution.
The Deputy is right. The brief for this committee is to go through the report with the officials from the Department. The follow-on will be to invite the chairperson of the commission to come before the committee. When we arrive at the point where the issues are constitutional, we will not have the expertise to deal with them and will advise the Government that we have reached that point and cannot go any further.
We just began working on this issue this morning, but it has already become complex. I do not agree with Deputy Twomey that it is a matter for Government yet, although ultimately it will be. The medical fraternity is divided on whether human life exists at conception or 14 days later. A question is often asked, "How long is a piece of string?" The debate could run forever.
The Supreme Court could decide one way or another. Currently, if people allow embryos "perish", they will be considered by some to have committed murder. The same goes with regard to embryonic stem cell research. It cannot be carried out until the issue is clarified. The medical opinions on the issue do not matter. This is both a legal and constitutional issue and we must deal with it.
How realistic is it for us to say the Supreme Court will deal with it and when will it do so? I suggest we should get copies of the Medical Council's ethical guidelines for all of us. These would be useful to have in dealing with this report. I know from my time on the Medical Council that it has changed its guidelines with regard to embryos. We should check what it is saying on the matter now.
We will make that one of our recommendations and may even invite some people from the council to the committee.
We should at least have a copy of the guidelines.
We will have them. Our hearings begin at the end of October or early in November. We will ensure any information requested this morning will be provided within the next week or two in order that members will have the opportunity to read up on it over the summer.
Mr. Mullen
To be helpful to the committee, the relevant parts of the Medical Council guidelines relating to reproductive health are included in the commission's report.
There are other points in the guidelines that might be of benefit to us also.
What Deputy Twomey is saying is right to an extent. However, that is no reason for us to stop or not do the work we have been requested to do. It is important that we prioritise. We should deal with the non-contentious issues first and work out our timetable to get much of the work under way. Senator Henry pointed out that we are required to legislate for many issues, but that we have not done so. We are in dereliction of our duty in that regard. We need to get the process under way with those issues that are possible to deal with.
The fact that the issue is a kind of constitutional minefield should not be enough of a reason for us to stop our——
It is not a constitutional minefield. It needs the Constitution or the Supreme Court to make a decision on it. It may be an ethical, social and moral minefield, but it is not a constitutional one. It is quite clear that the Constitution has not clarified when the unborn is protected, whether in vitro or in utero. If it is protected in utero, stem cell research and allowing embryos to perish are currently permitted.
What is delaying the Supreme Court decision?
The matter has never been presented to it.
To return to the matter in hand, the committee has been asked by the Government to examine this report and we will do so.
I agree.
Clearly, there are issues we can address. We will examine the report and have assistance from the officials. We will also invite the chairperson of the commission and some members to appear before the committee. We will examine the report in detail and when issues arise which the committee cannot deal with, we will flag this. We will endeavour to resolve any issues we can. The committee has agreed to invite medical expert advice on issues which may require it. We will proceed until April. That raises the question of the April deadline proposed by Deputy Twomey which I ask the delegation to clarify.
Mr. Mullen
We will clarify that issue. I was not aware that the specific deadline had been set.
That may have been a misunderstanding. The committee was led to believe it was required to report by April.
Mr. Mullen
May I ask where the April deadline came from?
The committee was invited to examine the report and requested by the Department that it be returned by April. If the delegation has not been informed of this date, there may be a misunderstanding.
Without a deadline we could keep going forever.
It would be easy to get lost on a subject such as this without a deadline.
In order to progress the meeting the committee has agreed it wishes to complete all the hearings with the interested groups by April. Are there any other questions?
I support Deputy Twomey's view. It is a very complex area. The first step should be to invite the commission which has sat and examined this issue in great depth. I do not fully agree with an April deadline because of the complexity of the issues. I suggest the committee ask for clarification on whether or not the April deadline is essential. None of us underestimates the size of the task before us and I suggest the first step should be to invite the commission and a representative group of members of the commission. They have already examined this issue and may bring the committee up to speed on the current state of affairs. The committee should then announce its plan of action for the future.
I commend the officials for a very succinct and comprehensive report to this meeting on the issue. I attempted to read the report which I acknowledge is quite complex. The committee will be calling on the assistance of the delegation as it goes through this minefield.
The committee plans to invite the commission to appear in early September and discuss the report and expert opinion will be invited if required.
It may be appropriate for the committee to write a letter to Government on this matter as it will raise a constitutional issue. The committee could work through the other recommendations but I suggest the matter should be flagged to Government now. It will be difficult if not impossible for the committee to make a final report without a directive from Government on this issue.
Not all members of the committee have read the report yet.
I support the Chairman's view. Before we do that it might be more appropriate to invite a constitutional lawyer to advise us on the current position. I have no doubt that Deputy Twomey's information is probably correct but it might be sensible to have it verified by an independent source.
It is clear this issue will be controversial.
Mr. Mullen
On a point of clarification, the commission discussed the issue. The legal position was discussed in some detail in Appendix 3 and can be clarified in one of two ways, either by pronouncement of the Supreme Court or through a constitutional amendment. These are the two means of clarification as to when the unborn is afforded the protection of the Constitution.
This committee does not have the power to refer a matter to the Supreme Court or to call for a referendum.
The committee can make recommendations. To return to the business in hand, the committee has been asked by the Government to deal with the report, consider its recommendations and hear from those who wrote the report and from interested parties. This is the committee's brief and not to unravel matters or make declarations but rather to examine the report on behalf of the Government. The committee will begin hearings in October and into November but members of the committee will be briefed in September by experts in order that they are properly prepared. If during consideration of the report the committee needs to listen to further advice then that will be organised.
I thank the Chairman for allowing me to contribute. I note in the report that one member of the commission made a formal expression of dissent in respect of the recommendation that envisaged the deliberate destruction of the embryo. Taking Deputy Devins's point that selected members of the commission would be invited in, may I suggest that the dissenting individual be one of those invited to appear before the committee? This is a matter of fundamental importance which may result in a referendum. I am not a member of this committee but I have strong views and would like to hear the views of that person.
I have no difficulty with that suggestion. There was a dissenting voice raised on three or perhaps four issues. The chairperson of the commission would be in a position to confirm to the committee what are those issues. We will consult the chairperson on the composition of the delegation. I do not wish to be controversial at the outset. This will be an open and transparent process and the committee is trying to help. I am reminded of the Travers report and I assure members that the position in this case will be the same.
I hope people have not already made up their minds.
Clearly, they have. The same strategy will be adopted as was used for the Travers report. The committee will treat this matter in an open manner and I assure the committee there will be no votes at the end.
That remains to be seen.
I hear what the Chairman is saying and have no doubt it will be very open and transparent but it will be very controversial. People will wonder what is happening every time we meet.
Apart from the medical, scientific and legal experts coming before the committee, once word goes out of this room that the committee is meeting, all kinds of interested groups will be coming to meet us, whether they are liberal-minded people or conservative-minded people. What kind of people will the committee meet? I flag this now because when we were dealing with this issue during discussions with the Medical Council on ethical guidelines I met some lovely people but also some very scary ones. I received things in the post from people that frightened me. The same could happen when we start discussing this subject. We should be aware of what we are getting into. I suggest that the committee give some thought as to the people we wish to meet and perhaps implement a screening programme. Most are genuine with genuine concerns, but there are people out there whom I would query.
We can see that 21 July is now a date that creates controversy. People will think the committee is in here wondering when it will set up clinics throughout the country. That is not the issue. We are here to go through the report of the commission. The commission was set up and it spent some time putting together a few points. The next step must be that an arm of the Government examines the report. Some want to create controversy by bringing in the abortion debate, but we are not into that.
As it will happen anyway, we might as well be open-minded about it.
No. It will happen if this committee tries to create an air of controversy where there is no need for it. Let us be clear on what we are doing. We are not here to create any controversy. A debate has been going on for several years. The Government set up a commission and its report has now been presented. The Government has turned to this committee to go through that report. This committee does not have the authority to make fundamental changes. Members of the committee have expressed concern as to whether we would have expert advice. That shows there are areas in which we do not have total command. By way of a facilitator or a consultant we will make a report back from our hearings.
Groups will be aware of what we are at and they will write to us asking to meet the committee. It is up to the committee to ensure all sides of the debate receive equal opportunity to appear before it. This does not need to be controversial. We should try to be helpful in this debate. Raising controversial issues will only do harm to Members, the committee and even to the commission. I would prefer if we heard from the commission and had our questions ready for it. We should also allow people to come before the committee who are on both sides of the debate. There is no need for discussion on the Supreme Court and referenda.
I take issue with that, since I have read through much of this report and it is excellent. I do not take issue with any of the points in the report made about IVF, how it works and what needs to be done. Guidelines were issued by the Medical Council a few years ago to protect doctors and patients who were working in the eight centres that existed at the time. They were carrying out IVF and other forms of assisted human reproduction. This report is a delayed version of those ethical guidelines, although it is a bit more detailed. When we are going through this report, we may have some minor issues surrounding some of the 40 recommendations. It is not just about some re-run of the abortion referendum, nor is it about the perishing of embryos. Recommendation 33 states the child born through surrogacy should be presumed to be that of the commissioning couple. That in itself is extremely controversial as the surrogate mother has no claim on that child at any stage. What happens if she changes her mind? What if she provides the ova rather than the ova and the spermatazoa being provided by the commissioning couple? Such issues have as much to do with contract law as they do with ethics and morals and this committee can deal with them.
I have to highlight one issue. We have no authority regarding issues that affect the Constitution. We can tick the boxes behind each of these recommendations and discuss some of those highlighted. However, four of them need to be referred back to the Supreme Court and the Constitution and we have no authority over them.
I acknowledge the Deputy's concern. However, what is the alternative? There is no regulation and no legislation in place in the area.
That is what I am saying. The four recommendations need to be discussed at Cabinet. The commission has discussed them in detail and we can discuss them in detail. However, we should get some kind of legal direction from the Cabinet on these recommendations, or at least from the Attorney General.
There is no need to draw the Cabinet into the debate at this stage. It is up to us to go through our brief. We should recognise that there is no regulation or legislation in place in the area of human reproduction.
I do not have much to add to what the Chairman said. We should get on with what we can and deal with the hurdles as they come. However, I do not agree with Deputy Twomey when he claims that we have no authority. This Oireachtas committee has much more authority than the Deputy seems to think. We do not have to call for a referendum, but we can make recommendations.
I agree with the Chairman that there is no need to run to the Cabinet. However, we should apply our minds to thinking of a good constitutional lawyer, a human rights lawyer, or someone who has expertise in this area. The guidelines of the Medical Council are merely guidelines. They are not set in stone. There is much confusion out there. The one big area that will come up is the anonymity of a sperm donor. Should the child have a right to know his or her father? At the moment, the sperm donor has a right to remain unknown and the child has no right to know. We should now get a legal expert to deal with this.
I suggest that the Chairman consult the Chairman of the all-party committee on the Constitution, of which I am a member and which has touched on some of these issues in the past. There is some excellent legal advice available to that committee which we might be able to use.
I will take that advice. I propose that the committee invites Ms Lia O'Hegarty, the legal adviser to the Houses, who will advise us on the implications there may be. She may also be able to recommend names for further medical legal advice. We cannot wait until the hearings begin in October and we will use every opportunity we can in September to bring in people to give us direction on how to conduct those hearings. I am more concerned about how we ensure that we get a fair cross-section of people from both sides of the debate. Many people will make contact with the committee and ask to come in.
That is very important. We need to establish criteria early on. We need to send out some form to those who wish to appear before the committee in order that we know their purpose and whether we need witnesses. We have to be equal in our treatment of those we call before the committee. We cannot have people claiming that they were not allowed in.
There must be a screening process.
The all-party committee on the Constitution has been through this process. It placed an advertisement in national and regional newspapers inviting submissions. Deputy O'Malley is correct in that there was an overwhelming response from all sides of the debate and groups which might not represent a large constituency became involved. All groups must, however, be invited because if group X is invited and not group Y, we would be making a judgment and that is not our job.
I wish to conclude our deliberations. We have the remainder of July and all of August in which to read the commission's report in detail. We will receive the legal advice by 15 September and will invite the commission to come before the committee on the same date.
We have a very tight work schedule right across other areas. The all-party committee on the Constitution considered one issue at a time. There will be a ferocious time restriction if we limit ourselves to an April deadline.
I do not know whether the Deputy is saying we should place an advertisement. However, I would be somewhat wary about doing so because we do not know who we might attract. We may decide after September who we should invite. Do we control the situation or do others? We also need to establish what kind of constituency is represented by those who come before the committee. We might get some very loud individuals who only represent tiny groups of people and this should be determined in some way before they come in. Anybody who wishes to come before the committee should be sent an application form.
We cannot do that this morning. I do not want the committee to give the impression that we have already become selective in how we proceed with matters. I know that this is not what the Deputy is suggesting but let us put it in context. We will spend the next month reading and considering the report and invite legal advisers, together with the commission, to come before us on 15 September. Thereafter, the committee will consider the advice to ascertain how we can ensure outside parties have no difficulty believing it is only going through the report. We are not here to make earth-shattering recommendations or to cause controversy. We must try to assist this very delicate debate, which creates huge emotional outbursts from both sides. I want to avoid the use of the word "argument".
We previously discussed getting a consultant to advise the committee on how to proceed. This will be decided on by the committee, not by one group or the Chairman. Whoever we decide upon will advise us on how we might properly proceed in inviting individuals and groups with an interest in the debate.
I take Deputy Devins's point that we should move away from the notion of an April deadline. We want to get this issue right and be seen to act properly. There is no further business on this issue this morning.
Do we have any other business?
There are no related matters.
Many groups have already made their recommendations to the commission. We could follow through on the medical and legal aspects of the report before addressing other aspects.
That is good advice. It is not a closed shop issue. Submissions have been made to the commission and we will go through them. The chairperson of the commission will advise as to how it invited opinion and it is our responsibility to follow this advice. We will not have a short debate and stick to the April deadline because it will not happen. We will take on board any advice we can. This committee will go about its business with the minimum of controversy. We will also invite officials from the Department to come before the committee again if we require further advice.
I have no doubt that we will be obliged to do so.
The joint committee went into private session at 11.25 a.m. and adjourned at 11.26 a.m. sine die.