JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Thursday, 15 Sep 2005

Commission on Assisted Human Reproduction: Presentation.

Chairman

I welcome Professor Dervilla Donnelly, chairman of the Commission on Assisted Human Reproduction, and her colleagues. The joint committee has been given the task by the Minister of examining the recommendations made by the commission and will do so in the coming months. This morning's meeting is by way of an introductory session. I have already informed members that dates have been allocated, from 14 November through to January 2006, for consideration of the commission's recommendations. There has been some speculation that we must issue our report by April to coincide with the coming into effect of EU Directive 2004/23/EC regarding the preservation and storage of human tissues and cells, but this is not the case.

The then Minister for Health and Children established the Commission on Assisted Human Reproduction in 2000 and appointed Professor Donnelly as its chairperson. The commission has deliberated on the issue of assisted human reproduction and produced recommendations which this committee has been mandated to examine before issuing a report. The commission has been engaged in hard work for four years as those who have had time to read its recommendations will recognise. It has acted in a voluntary capacity, working towards the brief assigned by the Minister. Much time and effort has gone into the report on the part of commission members.

It is important at the beginning that we state what the discussion is about. There are opinions abroad that this committee may be concerned with something else. One of the most glaring points made by the commission is that some eight, nine, or possibly more clinics operate in this country and approximately 1,000 babies are born here each year as a result of assisted human reproduction methods, AHR, but no regulations exist whatsoever. The commission also makes the point that no statistics are available and there are no regulations regarding storage, treatment or handling. We have no rights or involvement in respect of the medical experience and status of those who run the clinics. These are major issues which need to be dealt with by way of regulation.

The Minister established the Commission on Assisted Human Reproduction in 2000 and acknowledged that major advances had taken place in the capacity of medical science to intervene in the process of human reproduction. Techniques such as in vitro fertilisation, IVF, the freezing and storage of sperm and artificial insemination by donor are available in Ireland and have enabled many couples to conceive despite impaired fertility. The ability of science to intervene, control or alter the natural process of the creation of human life poses fundamental ethical questions for the medical profession, the Government, this committee and society as a whole.

Many other countries have legislated in recent years in order to set down parameters within which such intervention can take place while recognising that scientific development can often outpace legislative controls. However, there is no such legislation in Ireland. Medical practice in this area is governed by guidelines set down by the Medical Council which only apply to registered medical practitioners and would prove ineffective in the case of any service operated by other persons. The clinics, of necessity, must use the services of non-medically qualified personnel for the procedures needed to carry out the process. We have no input in respect of the way in which people working in this particular area carry out the specifics or the nature of their medical expertise. There is also public concern that such complex and controversial procedures are practised in Ireland in the absence of legislative controls. It is broadly accepted that legislation should be in place to govern such practices.

Some 1,000 babies are born each year in this country as a result of these procedures and the success rate is between 25% to 30%, which means that some 6,000 to 8,000 persons are involved in the process. Ireland is at a disadvantage as many other countries have legislation in place. There are no national statistics on the outcome of assisted human reproduction and no appropriate guidelines or legislative provisions exist to govern the storage of gametes and embryos. Similarly, there are no guidelines to govern the number of embryos to be transferred. There is no regulation regarding unwanted or abandoned embryos and there is no control over recognised providers of AHR services with regard to patient consent procedures. There is no regulation in place relating to the donation of gametes or embryos and to date there has been no report of embryo donations carried out in this jurisdiction. The providers of AHR services will, like many other services which deal with human cells and tissues, be subject to provisions under EU legislation when it comes into effect.

Notwithstanding all of the recommendations within the report, the most important point for us to remember is that no regulations exist. There is no point in pretending that IVF does not occur in Ireland, yet neither the Government nor the committee has any input or competence to become involved in the setting out of regulations. In this regard, I invite Professor Dervilla Donnelly to provide us with a background to the establishment of the commission and a brief outline of what has occurred in the past four years with specific reference to how the public has had an input into the commission's thinking. I will then open the discussion to the floor in order that members can ask questions. Professor Donnelly can then refer questions to the panel.

The main emphasis of this morning's meeting is to ensure that we get maximum information and that we are prepared for our own deliberations in the hearings which begin in November. If other issues arise we would like to have direct contact with the commission during that process.

Professor Dervilla Donnelly

I would like to introduce my colleagues from the commission who have agreed to come with me this morning to meet with the committee. Professor Marina Lynch looked after the work group dealing with research. Professor Andrew Greene looked after the initial work group on embryos and gametes. The division of our work groups is laid out in the first few pages of our report. Mr. Peter Hanrahan is my right-hand person and looked after us as secretary to the commission. Dr. Deirdre Madden was responsible for group 2, which was concerned with donations and surrogacy, on which she is an authority. We are very happy to have Dr. Miriam McCarthy with us today. She is from the north of Ireland and has given us extraordinary assistance throughout the entire process.

I am very ambitious and felt the committee should meet quite a few commission members. Dr. Mary Wingfield headed up one of the clinics in Dublin. Dr. Aonghus Nolan comes from Galway and is an embryologist. Therefore, the committee will be able to get an idea about the work that is carried out. Professor Gerry Whyte, who is a lawyer from Trinity College, wrote one of the dissents in the document.

I thank the committee for giving us the opportunity to brief it on our report. The commission was established in March 2000 by the then Minister for Health and Children. The terms of reference given to the commission were to prepare a report on the possible approaches to the regulation of all areas 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 was comprised of persons with expert knowledge spanning the medical, scientific, social and legal fields. This expertise was a prerequisite to a precise examination of the issues concerned. In addition, I invited a number of additional experts with complementary expertise in specific areas to join the work groups.

The commission adopted an interdisciplinary approach to its work. Initially, each discipline — medical, legal, scientific and social — prepared a report outlining the current position within that discipline relating to assisted human reproduction. It became very clear that we had four isolated but excellent reports. However, these would not answer the problem put before us. As a group, we identified the issues for consideration, which included gametes, embryos, cryo-preservation, the legal status of the embryo, donor programmes, surrogacy, regulation of assisted human reproduction services, embryo research, regenerative medicine, otherwise known as cloning, pre-implantation genetic diagnosis and the legal, ethical and social implications of these topics.

It was essential that the work groups met on a regular basis for discussions and to progress the work of the commission. This was not an easy task and it required a sensitive approach, as they are complex issues which required each and every member of the commission to listen in a sensitive way to the other's point of view. There are no simple answers to the questions raised in the commission's discussions. Not everyone agreed with all of the recommendations and the joint committee will see in the report that we have two dissents.

The work group structure facilitated close attention to a relatively limited range of topics by a highly specialised group. It also facilitated the detailed exploration of a range of ethical and social implications arising from assisted human reproduction.

The commission organised two conferences. The first was held in Dublin Castle in September 2001 and dealt with the social, ethical and legal factors inherent in assisted human reproduction. It provided an opportunity for an exchange of views between the commission members and a small number of invited Irish and international experts. The second was a large public conference held in February 2003, also in Dublin Castle, for an audience of over 250 people who responded to the commission's public invitation to attend. The purpose of the conference was to examine the current state of assisted human reproduction in Ireland and abroad on the basis of presentations from acknowledged experts in their respective fields. It also explored the legal and ethical issues surrounding the in vitro embryo and the possible contribution of assisted human reproduction to the creation of families as distinct from individual children.

On establishing the commission, the Minister indicated it would be required to seek submissions from the public and consult appropriate interests. Subsequently, the commission placed an advertisement in the newspapers inviting interested members of the public, professional or voluntary organisations and other parties who wished to do so to make written submissions before 31 October 2001. We received more than 1,700 responses to this request.

The commission also engaged in a number of information gathering exercises that included a survey of assisted human reproduction services provided in specialised clinics. A survey instrument was drafted by the commission with a view to establishing the extent of the provision of assisted human reproduction services in Ireland. A survey of general practitioners was also conducted. The commission issued a survey instrument to a random sample of 50% of general practitioners in all health board areas. The commission also issued a survey instrument to obstetricians and gynaecologists to elicit information on their level of involvement in assisted human reproduction services. In addition, the commission has also surveyed public attitudes and opinions on a range of questions related to assisted human reproduction.

The commission was also expected to consult the relevant experts in Northern Ireland and the UK. The Northern Ireland element of the consultation process was largely met by the appointment of Dr. McCarthy from the North to the commission and I visited the Human Fertilisation and Embryology Authority in England. In addition, the commission looked at the situation in other countries and took note of comparative surveys carried out by the International Federation of Fertility Societies, IFFS, on the provision of fertility services in a large number of countries.

The commission made 40 recommendations on assisted human reproduction services in Ireland. The first recommendation is that an independent statutory regulatory body should be established by an Act of the Oireachtas to regulate assisted human reproduction services in Ireland. This body would be accountable to the Minister for Health and Children and would have regulatory, advisory and executive powers over the permitted assisted human reproduction services. This body would license storage facilities and clinical, laboratory and research procedures of assisted human reproduction centres. In addition, it would be empowered to issue guidelines on the operation of the permitted assisted human reproduction 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 that there be no discrimination in access to assisted human reproduction services on the grounds of gender, marital status, or sexual orientation, 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 recommendations are that current IVF practices be endorsed; 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, the recommendations are that the legal parents of children born through donor programmes should be the gestational mother and her partner, if any; the child born through the use of donated gametes to be entitled to know, on reaching maturity, the identity of the donor or donors 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 the question of embryos, the recommendations are that pre-implantation genetic diagnosis, PGD, 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 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 under stringently controlled conditions on surplus embryos donated for such purposes; and 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, that is, 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 and 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. The commission was not asked to recommend on the question of funding. However, at the time, the former Minister for Health and Children, Deputy Martin, stated the establishment of the commission was an essential first step before any policy proposals were brought forward. Our report meets the two criteria set for the commission's work, namely, to provide the medical, scientific and legal expertise for a detailed examination of approaches and to act as a catalyst for a subsequent public debate about the issues raised and our recommendations before any policy proposals are developed.

As I stated, these are complex issues which require due consideration by all concerned in any public discussion of these matters. I have no doubt that the Tánaiste wishes to see such a debate occur within an appropriate timeframe. This detailed and comprehensive report has taken a considerable amount of time and effort from everyone involved. I again express my appreciation of the time and effort that members of the commission put into this project on a personal and purely voluntary basis. It was a great pleasure and an education to work with them. If members have any questions about the report and its findings, my colleagues and I are more than happy to answer them where we can.

Chairman

We will now have questions and observations from members of the committee to ensure we get the maximum benefit from this morning's hearings and presentations. We can direct questions to Professor Donnelly, which she can redirect to members of her panel if she wishes.

Deputy McManus

I thank the Chairman for outlining the position very well and I support his approach. With this major report, it is important that we do not return to the beginning but that our work is a continuum of the commission's excellent work, on which I congratulate all the commission members. They have spent a very long time on this work, their diligence is noteworthy and we owe a great debt of gratitude to them.

This will take time to tease out but I have a few immediate questions. Regarding the commission's comments about ethical and social issues, I cannot think of any scientific and medical advance more wonderful than offering people a chance to have a child. However, I am not sure what is the current status of people on very low incomes or what their status will be if changes are made in the future. I am talking about a person with a medical card or a person who is not in a position to avail of services that have a cost attached to them. I am not clear whether there is full protection for people, regardless of their income. Professor Donnelly said she wanted to see protection as regards gender or sexual orientation but does she have any views on class and income?

My second question relates to the destruction of embryos. I can understand and respect people's views with regard to this issue but there does not appear to be any clear alternative. Could Professor Donnelly tell us whether there is any realistic alternative to what has been proposed here because it is likely that we will end up having very abstract debates, as have happened before in other areas. However, at a practical level — the great strength of this report is that it has many practical proposals — are there alternatives that we can seriously consider? If there are no alternatives, we need to know this.

Questions were raised in the media about surrogacy and a minority view opposed the recommendations. Perhaps Professor Donnelly could elaborate on this issue. Regarding the point of conception or the question of when life begins, we cannot begin to look at a major philosophical issue that has concerned people for decades, if not thousands of years. We can go back to St. Thomas Aquinas if we wish on this issue but it will do us no good as practical politicians. There is a considerable amount in this report. Perhaps Professor Donnelly could comment on a timeframe. The current lack of regulation is rather disturbing and is surely untenable.

Senator Henry

I am delighted that the commission members are here this morning and take an enormous interest in the report. I brought forward a Private Members' Bill approximately seven or eight years ago to introduce some regulation in this field. My main concerns relate to the safety of patients and the quality of the care they receive. I agree with Deputy McManus that the philosophical side of the issue, which I recognise is very important, is very difficult and I think we have very little power to do anything about it. It is beyond our control and is really in the domain of the Supreme Court.

There is much in this report about which we could all agree fairly rapidly because most of the recommendations concern trying to set up an authority and bring in some kind of regulations. I found it very difficult trying to get information about their activities from some organisations and individuals involved in assisted human reproduction. Patients have a major emotional involvement in this process. I had no idea what sort of counselling people were getting and there is a serious financial problem as well. There is a great onus on us to address the report from the perspective of the safety of patients and the quality of care they are getting.

I can see all the merits of the report and the dissenting opinions but these are very difficult areas. I was very surprised — Professor Donnelly did not mention it — about number 33 in the list of recommendations, which concerns surrogacy. It recommends that a child born through surrogacy should be presumed to be the child of the commissioning couple. I thought most legislation internationally did not agree with this and that only a few states in the United States favoured this kind of approach. Therefore, I would like to find out why this approach was favoured in the report. I congratulate the commission on the clarity of what it has brought forward but I hope it would address this issue in the same manner as we would address any topic to do with the health of patients, which is from the perspective of safety for mothers, fathers and the child and the quality of care and advice those involved are getting.

Deputy Cowley

I congratulate the commission on its valuable work and report, which is extremely clear. As has been alluded to, the report certainly raises many issues for debate.

An independent statutory regulatory body is certainly fundamental because we have been challenged to deal with the exploitation of embryos. This is the major issue that an independent body would need to ensure would be adequately dealt with, with the difficulty of ensuring this wonderful advance in medical knowledge can allow people who would not otherwise be able to have them to have children.

I reiterate Senator Henry's concern as regards the unlicensed facilities operating in Ireland. We do not know what is happening in them, the health effects on patients and what harm these clinics have already done. We need to be very aware of this issue, which is why there is an urgency about the work the commission is carrying out. The Oireachtas urgently needs to address this situation and ensure a body independent of commercial concerns regulates the area. This is a particularly onerous responsibility we all share. The use of pre-conception sex selection to prevent serious sex-linked genetic disorders could also be open to abuse. Perhaps Professor Donnelly could discuss this issue.

Professor Donnelly talks about how reproductive cloning is to be prohibited and then goes on to talk about permitting regenerative medicine under regulation. Reference to "regenerative medicine (cloning)" is made in one part of the report. Perhaps this matter could be teased out with the idea of stem cell research. Much good can be done and we are all aware that Christopher Reeve, the actor who played Superman, died after seeking regeneration of his spine, which no one could provide. There is much potential in this area. Therefore, while it is an exciting time for us, there is also an onus on us to ensure the matter is treated in the right way. In view of what is happening on the ground, events are getting ahead of us.

Chairman

I invite the delegation to take the first three questions and in the next round of questions we will hear from Senator Feeney and Deputies Twomey and Devins.

Professor Donnelly

There is some overlap in the questions, which is quite helpful. I stress that as we were asked not to examine the matter of funding, we cannot comment on it. We came across clinics where work was being undertaken at no cost, when a patient was considered particularly suitable. In Northern Ireland much work has been done on the question of funding in this area and Dr. Miriam McCarthy might say a few words on this matter.

Dr. Miriam McCarthy

We do not have all the answers in the North. Since the early 1990s we have had the Human Fertilisation and Embryology Act and the Human Fertilisation and Embryology Authority set up to regulate services across the United Kingdom. There are two clinics in Belfast, both of which are registered with HFEA, meet licensing requirements, are regularly inspected and meet standards for storage, research and service delivery. These clinics have an obligation to send returns and data on the number of patients undergoing treatment and the number of successful treatments. We have a good indication of what is happening and its success rate and this information is available to patients.

Traditionally, until a few years ago, we did not fund IVF or related treatments through the public purse, although some of the less invasive forms of assisted human reproduction were being funded. Some years ago we introduced a system that would formally fund those services within a cost envelope of approximately £1.2 million. For the past few years we have been providing services funded through the health service for couples who meet certain criteria. Those criteria include the number of years a couple has been infertile, usually three years unless there is a specific cause of infertility. There is also a restriction on the number of cycles a couple can have as this ensures the fair and equitable distribution of a limited amount of money. One criteria that has been challenged is that the couple must not have a child living with them and this allows priority to be given to those who are childless so that they can have a first child.

We have examined these criteria and have consulted publicly on how we should spend public money and which couples should have priority. In the past year we have met a number of interest groups and have had excellent, sensible discussions on that prioritisation on which we will shortly issue guidelines. This has emphasised that when there is some degree of funding available it never seems to be enough to meet needs. This is not peculiar to infertility treatment; it applies to many aspects of health services. We need to examine where fertility treatment is placed with regard to other health priorities. We have had some good debates and have done some interesting work and a limited service is available. Couples who have managed to avail of this have been delighted and have benefited from our service.

This may provide the committee with some insight; we still wrestle with issues of eligibility, access to services and prioritisation. We are funding an element of IVF and related treatments.

Professor Donnelly

That is as far as we can respond to Deputy McManus concerning funding. The Deputy also raised the question of destruction of embryos. The Medical Council has indicated that the adoption of embryos is acceptable and perhaps this provides a way out. Dr. Mary Wingfield might be able to comment on the destruction of embryos from the point of view of clinics.

Dr. Mary Wingfield

Most couples who undergo IVF treatment do not have surplus embryos. For the vast majority of couples undergoing treatment the problem is that there are insufficient embryos to give them babies. Many of these couples may get only one or two embryos that can be put back and the other eggs may not fertilise, or if they do the embryos may not be healthy enough to freeze. We know that these embryos will die or produce abnormal pregnancies. Even if they do have embryos suitable to freeze, the majority of couples use these subsequently if the first treatment does not work or use them for a second child in the future.

We do not have figures but approximately 3% to 5% of couples might have surplus embryos when they have their family. This does not apply to most couples undergoing IVF treatment. For the minority who have surplus embryos we are in a dilemma as there is no guideline on what we should do with these. It is possible that the couple will separate, move overseas or that one partner will die. There is no legislation to govern what will happen to embryos abandoned in those situations.

This issue is very important for the couples at clinics and some would like to be able to donate to couples who have undergone unsuccessful IVF treatment. These couples may be considering adoption and we know this is very difficult as there are few babies available for adoption and foreign adoption is not easy. There are situations where couples would like to receive embryos and there are couples with a surplus who would love to donate embryos to another couple. There is no legislation dealing with this and although it is recommended by the Medical Council, embryo adoption is not as simple as it sounds. Many issues need to be addressed, including the rights of children born in this way to know their genetic parents. If the donated embryo resulted in a child with a chromosomal or medical problem, the recipient couple should be counselled that the child will belong to them. We do not want a dispute over who is to look after a child with a problem. Other counties have clear guidelines, such as New Zealand, which has just introduced a comprehensive programme for embryo donation. It stresses the counselling that must be undertaken for both the donor couple and the recipient couple and the issues of which they must be aware. In Ireland we cannot offer this as it would be difficult for an individual clinic to develop a service. Would the public be satisfied with my clinic or hospital introducing rules and regulations on these complex issues?

Professor Donnelly

Members can see that Ireland is at a disadvantage, which is a pity.

Professor Gerry Whyte

I remind members of the committee that I am the author of the sole dissent on this issue in the commission. It is not a comfortable position in a commission of over 20 members. There is self-doubt all the time and it wells up. I remember saying to my colleagues at the time that I felt like the foreman of the hung jury who explained to the judge that the reason the jury could not come to a conclusion was there were 11 stubborn brutes to deal with.

Deputy McManus referred to the practical issues involved in assisted human reproduction. Through my membership of the commission I have become more aware of the trauma and grief that attaches to infertility. I have read about stem cell research and the hopes it generates for people suffering from various forms of illness. One cannot fail to be moved by the plight of people such as Mr. Reeves or people suffering from Parkinson's disease where the possibility of a cure is being held out. However, I still dissented from the majority position. This was not because it is an abstract philosophical issue that a woolly headed academic like myself worries about at night for idle pleasure. The right to life is a fundamental issue. The principles we formulate in respect of that right must be carefully thought through because of the potential implications for a particular situation or for other situations yet to arise. I considered the reasoning of the majority in the commission which had set out approximately five different arguments for why the embryo should not be protected from the moment of conception.

I will state two bedrock principles from which I started which may assist members of the committee in determining whether they agree or disagree with me. First, individual human life is of value in and of itself. It is not appropriate to treat it as a means to an end. I do not subscribe to what can be referred to as a utilitarian view of the value of human life. Second, in establishing the scope of the right to life it is not permissible to be arbitrary. To take an absurd example of arbitrary distinction nobody in this room would accept the view that blue eyed people should be killed but everyone else spared. I extend that principle to the entire spectrum of life. Such distinctions are appropriate in other areas, such as the right to vote. If somebody is 17 years and 363 days old then he or she cannot vote whereas somebody two days older has that right. This is inappropriate when it comes to the question of the right to life.

Viewed from those two bedrock principles, there are difficulties with each of the arguments . There is an element of arbitrariness with each of them that created problems from that regard. I add to what I stated in my dissenting report that the ultimate position that emanated from the majority in the body of the report is that the in vitro embryo should remain unprotected while it is in the test tube. Once it is transferred into the body of the woman it will then enjoy whatever legal protection the naturally conceived embryo enjoys. That might mean full constitutional protection if the Constitution is interpreted as applying from conception or, if the Constitution is understood to apply from implantation, it might mean no constitutional protection. The Constitution is uncertain in that regard. The in vitro embryo, however, remains unprotected. I posit a hypothetical and hopefully fanciful situation whereby science develops the ability to maintain life in vitro. My understanding is that it is not possible at the moment to sustain life in such an environment for more than a matter of days but if medical science develops to the point where an artificial womb can develop an embryo from the earliest stages of life to a more advanced stage the implication of the majority’s position is that that developed life will lack legal protection. Does that mean there will be two categories of life — one naturally conceived and one which develops outside the womb? One can speculate on many Frankenstinian practices such as organ harvesting but I only use that example to illustrate the issues. We are trying to work out where we stand as a society in relation to the principles and implications of the right to life, matters which are not philosophical but real, notwithstanding the hypothetical nature of my example. For that reason I found difficulties with each of the arguments advanced by the majority. In conclusion I fully accept this is a complex area.

Deputy F. O’Malley

Does Professor Whyte accept that the law has the capacity to change?

Professor Whyte

On this question, the law must come after society has decided where it stands. A range of expertise was represented on the commission, such as medical, scientific, sociological and legal expertise, but the fundamental question of when we should protect life is a matter for every citizen. As a lawyer I cannot provide the authoritative legal answer any more than my scientific colleagues can provide the authoritative scientific answer. I wish to avoid trying to trump the argument by the use of a particular term but for me the question is not when human life begins. Everyone agrees that at a biological level life begins at conception. I do not advance that as a reason for saying everyone must sign up to my position. Society must decide when it believes legal protection should first apply to human life. That means that everyone is entitled to a view on this — scientists, medics, lawyers. Before dealing with whether the law can change we must ask where society stands on this. I dissent not in my capacity as a lawyer but as a member of Irish society making a contribution to public debate on a matter that is important for society.

Senator Henry

We could wait until this is decided in 20 or 30 years' time, but in the meantime there are adult women and men who have the potential for a baby being disregarded. Many things can be done as the issue is discussed. This is important. To say that we must wait for society to decide on the issue, which could take 30 years, could be very irresponsible. The debate has been ongoing for 20 years, at least since the constitutional amendment.

Senator Feeney

May I add to that as my point is related to Senator Henry's comments? I chaired the ethics committee of the Medical Council which changed the guideline to state that donations would be allowed. Before this, the guideline was that the embryo could remain for an indefinite period of time. Is there an end to an embryo's life or does it continue to remain in one state? If we do not tackle this issue now, we could go on for another 30 years with it in limbo. Now that the Medical Council has changed its guidelines, I ask the witness, depending on an intention of legislators and the general public to change it and taking into account legal debates about the rights of a child which is born, whether the medical guideline is currently realistic and if it can be moved on. Dr. Wingfield has already pointed out the legal elements that exist with the medical elements associated with such a child.

Chairman

I will finish this part of the debate as we have dwelt on this facet of it.

Senator Feeney

Are we into the second round of questions?

Chairman

Perhaps we could have Professor Whyte respond and then proceed to the next round.

Professor Whyte

With regard to whether this debate will continue for the next 20 or 30 years with people suffering from infertility, I stated I am acutely aware of that dimension of my argument. This is a very difficult situation and one cannot fail to be moved by the plight of infertile couples anxious to have a child of their own. However, this is a question of competing values. Although I would like to be in a position to see infertile couples helped in whatever way possible, if this is at a higher price than an understanding of when human life should be protected, I argue that we should then pause. It is because it is such a fundamental question that it must be addressed. If the route is taken of attending to the consequences of this debate rather than the merits of it, the cart is being placed before the horse.

Professor Donnelly

It is important to get a balance in this debate. One can imagine how entertaining our commission meetings were when we had arguments such as this. Professor Whyte may have stated that he was nervous on his own but he was more than able to argue his point fantastically well. I call on Professor Andrew Greene to comment on the question of the destruction of the embryo.

Professor Andrew Greene

I was also involved in those discussions with Professor Whyte, which I found very useful. I do not want to propose that there is only Professor Whyte's view and then another view. A huge spectrum of ethical viewpoints is evident in this area, and Professor Whyte put forward his views quite clearly. Some take the view that any intervention in the natural conception of a child is completely wrong, and that IVF, even without destruction of embryos, is inherently wrong. Others may take the view that life does not begin in the embryo at the point of conception, and from the biological view there is no point of conception. Conception is also a continuum and the process does not happen in an instant. These may take the view that human rights or human life are gradually acquired thereafter. A number of people have put forward various stages at which they consider that decision can be made, with some choosing the time at which an embryo implants within the womb and others choosing a particular time at which the embryo acquires certain physical characteristics, such as the development of the heart or brain. Still others may believe that as long as an embryo is within the mother's womb, the mother has the right over what to do and to choose what happens to a pregnancy.

There is a further range of views on the value of an embryo in terms of whether it should be treated with respect or considered entirely as a means to an end. There are many different views apart from those of Professor Whyte, many of which were expressed at the commission. In making various decisions and recommendations, in which Professor Whyte has expressed dissent, a broader ethical perspective had to be considered from another range of viewpoints within the commission.

Professor Marina Lynch

The issue of how long an embryo lasts in its cryo-preserved state has been raised. The sad reality is that we will never know. Many jurisdictions agree that five years is the appropriate length of time for an embryo to be kept, although there are opportunities to extend this. However, we will never know whether the embryo deteriorates more rapidly in the second five years or third five years etc., but we know that in storing animal cells, storage time makes a difference.

Deputy Devins

I require clarification on that issue. Is it correct to say we do not know the situation after five years because nobody has stored them for longer than that period or because an assumption is made that there is a degree of deterioration?

Professor Donnelly

There was one case of a baby being born after a 12-year storage period. However, Professor Lynch's statement that we do not know the state of embryos after five years is true. I am not sure of Dr. Wingfield's guideline for storage.

Dr. Wingfield

Our guideline is five years.

Deputy Devins

Is that an arbitrary guideline? Have embryos been stored for ten, 12 or 15 years?

Professor Donnelly

The case where an embryo was stored for 12 years was abroad.

Senator Feeney

Do the embryos perish if they are left for a longer period? I have difficulty in that the Medical Council would state——

Professor Donnelly

With regard to tissue in a deep-freeze, one only needs to watch it to know that it does not last forever in a perfect state.

Senator Feeney

The embryo will have a life span and perish at some stage.

Chairman

In this round of questioning I invite Senator Feeney and Deputies Twomey and Devins to question the delegates.

Senator Feeney

I welcome the commission and thank Professor Donnelly for her excellent presentation. Some of my questions have already been answered with regard to regulation. I was particularly taken by the Chairman's comments that more than a thousand of these babies are born every year, with more than 6,000 couples seeking IVF. There is an urgent call for regulation. Do the couples going for IVF realise the area is not regulated? Regulation would bring quality and safety standards.

A number of years ago, Pat Kenny had a radio programme dealing with the issue of IVF. It was the kind of radio programme where if one was going to the supermarket one would sit in the car until the end of it. It was breathtakingly interesting. The woman from one couple on the programme went through her story of the pain of infertility, and as a mother of four, I was spellbound listening to how simple it is for some people to have children and how difficult it is for others. There is a real need for IVF and I am sure people to not embark on it lightly. That makes me believe we should all be here in the interest of the good of those couples.

On surrogacy, I am glad to see the guideline or recommendation as it is. As a lay person, when I think of surrogacy I think of the United States. I never think of it happening on these shores. Does it happen here and, if so, what is the rate, by which I mean how many women would act as a surrogate? What is the position regarding the child of a surrogate mother knowing the identity of that mother?

What emerged in the survey on public attitudes and opinions? Given that we all have the public interest at heart, I would like to know what the public had to say.

Deputy Twomey

I observe that we have here four professors and four doctors. I mean no disrespect to Mr. Hanrahan. When the commission was asked four years ago by the then Minister for Health and Children, Deputy Martin, to examine this issue, we did not expect the philosophical, ethical, medical, scientific and legal issues to be dealt with. We expected answers. This has now come back into the political arena and politicians are expected to give answers to questions that the commission cannot give. Politicians make it their job not to give answers to questions.

Deputy Devins

The Deputy should speak for himself.

Deputy Twomey

When this issue came back into the political arena in July the controversy started straightaway. I do not know whether the commission has the report of our last meeting in July. Almost immediately on reading the report that I highlighted the question of how far we can go with this arose. It is constitutionally unclear. That was merely one point. There are opinions expressed in this report from London to Rome. I do not mean that in the religious sense but in the political sense. This report was published in March 2005. We recently returned from a trip to Bologna in Italy where legislation was introduced in August 2004 which has radically altered the way IVF and everything related to it works in Italy in terms of the protection given from the moment of fertilisation. There have been dramatic changes there regarding the embryo and pre-implantation genetic testing. We were told that of 3,000 babies born in a clinic we visited in the 12 months before the legislation was introduced, 1,000 would be considered illegal under the terms of the new legislation. That can be contrasted with what happens in the United Kingdom where there is an excellent body, the Human Fertilisation and Embryology Authority.

On the approach of the Commission on Assisted Human Reproduction to stem cell research and to giving accreditation for carrying out stem cell research, when we came back from Italy I read one of the UK papers in which the debate was about whether lesbian couples should be allowed to avail of surrogacy and IVF. I read this having come back from Italy where this is totally banned. Both countries are within the European Union. Where does Ireland stand? We are following ethical guidelines brought out by the Medical Council. Apart from that our legislation is practically non-existent. In some respects this is what we are now debating. We need something tighter and, perhaps, views from the commission as to how we should proceed. A few of the 40 recommendations here are very straight forward and could probably be rubber-stamped by the Government, while many of them require more discussion.

Reading the report one would almost think that regarding surrogacy contract and property law, who owns what in the whole process were almost as important as the ethical issues surrounding the debate regarding the status of the embryo. If the Supreme Court came down on the same side as the Italian parliament and ruled that human life begins at fertilisation, how would that affect the work of the commission and the recommendations it has made? We are to some degree working on the theory that protection of the unborn starts in utero. These are the questions to which we would like to get fairly solid answers because that would very much dictate how we proceed. I looked a little further at the seven recommendations that were asterisked and can see why they could be contentious. If we had a Supreme Court decision or even a referendum that gave protection at those two different points, which to some degree is a seven-day window, would that change how the recommendations would work here?

Professor Greene is aware of pre-implantation genetic testing. I do not know whether much of it is done here. It is a very interesting concept because IVF can be used not only where patients have infertility problems but where they have a genetic illness. One cell from an embryo can be removed and tested for a genetic disease and only embryos that are free of the disease used. We are well aware of these diseases here. The list shown to us by the doctor in Italy ran to around 20 different illnesses. The transmission of genetic disease to the next generation could be broken by using IVF, but that is now banned in Italy.

Many of the people in this room have experience of dealing with medical problems. I have much experience of dealing with couples who have infertility problems. I also have experience with patients who carry a genetic illness and who, once they get married and want to have children, want to examine breaking the link of this genetic disease going into the next generation. How we move forward depends on the outcome of the debates that are going on. Some aspects will be completely out of our control no matter how much we talk about the philosophical and ethical issues. The commission has been talking about it for the past four years. The Constitution could be amended in such a way that all discussion would stop and go no further.

Much of what I have said depends on how this whole debate goes. Many here believe we should move on with many of the recommendations and skip over the ones that might need to be referred to the Supreme Court . However, that would be a two-track approach. Many of the recommendations are fairly straightforward. The commission expresses the same variations of opinion regarding the ethical issues as the rest of Ireland. It should be easy to go through 33 of the recommendations where there is no dissent. However, the seven that caused problems are the ones on which we should focus.

Deputy Devins

I thank the members of the commission. Will we have the opportunity over the next couple of months to again meet members of the commission on a regular basis?

Chairman

Our initial hearings are taking place this morning. Our schedule begins in November. Professor Donnelly has made it clear that she and the members of the commission will be available at any time. We will have time during the next few weeks to go through this and if there are issues on which we need clarification we will invite Professor Donnelly in again.

Deputy Devins

That is good news. I will not delay the committee. I like the way the commission has approached this very complex issue. Following what Deputy Twomey has said I suggest that the committee draw up a schedule for dealing with each area in turn rather than dipping in and out of the issues. An area I want to raise is the issue of a presumption against treatment where there is a risk of harm to children that may be born. As far as I can gather from reading their report, the representatives are basing that assumption mainly on English law. Is there any evidence or jurisprudence in this country that would apply to that particular issue?

Professor Donnelly

Dr. Wingfield might be able to assist the Deputy in that regard.

Professor Greene

I was just going to address that issue. The basis for that statement concerns the fact that the interests of the child came first. We have to balance the benefits of potential harm to the child and so on. In terms of jurisprudence, I would prefer to leave that to Dr. Madden or Professor Whyte to address.

Professor Donnelly

Dr. Nolan wanted to make a comment.

Chairman

I call Deputy Neville as he has to leave shortly.

Deputy Neville

There are certain issues that need immediate attention by the Oireachtas and they should not be delayed by discussions of any length. We are not talking about 30 years but just two years. Deputy Twomey made the comment that there were four professors and four doctors in the delegation but on this side there are four doctors — one has just left — and two lay people. What applies on the representatives' side also applies on this side. We are learning here rather than making serious comment but having read the report and listened to the representatives, we must ensure the areas that need immediate attention in terms of control are not in some way hijacked by a 30 year discussion. We must make this clear.

Dr. Aonghus Nolan

I wanted to address the comments on what would happen if we went down the same road as the Italians. If we went down that road, we would end up in the same quagmire in which the Italians now find themselves, as well as the Germans and the Austrians. Since the Italian law came in there has been a huge increase in the number of triplet pregnancies. Europe-wide and worldwide there is a move to put only two embryos back into the mother. In fact, in northern Europe we are moving more and more towards elective single embryo transfers to reduce the incidence of multiple pregnancies. All of us are agreed that multiple pregnancies are to be avoided because of the danger to the pregnancy and to the mother. Since the Italian law came in they also recommend that only two embryos be put back into the mother but they allow for three eggs to be fertilised and if three eggs fertilise, all three are put back into the mother. We have a situation, therefore, where 25 year old women are being forced to have three embryos put back into them, they are getting pregnant with triplets and are losing those triplets. A total of 50% of triplet pregnancies miscarry.

Since the new law came in there is also the situation in Italy of what we call reproductive tourism. A huge number of Italians are now travelling abroad. The unit the committee members visited is under the auspices of a company called SISMER. It has units in Italy but it also has units throughout Spain. They were set up in Spain to deal with the Italian patients who left Italy and went abroad for treatment. If we bring in a similar law, we will see Irish patients travelling to the United Kingdom and further afield, as they do currently, for treatment. That is not to be recommended. Despite what members might think, we have very good services here and what we need is encouragement for those services but there is no doubt that there are legal nettles here with which we need to deal as best as we can.

Deputy Twomey

Despite what Dr. Nolan might think, we do realise that the services here are excellent.

Professor Donnelly

I was just about to say we were not going to allow any advertising. Several Deputies raised the subject of surrogacy. We have the Irish authority on this subject with us, Dr. Madden. I am sure a few comments from Dr. Madden will clarify many of the points raised.

Dr. Deirdre Madden

Before I turn to the issue of surrogacy, I want to make one or two comments about the welfare of the child, which somebody mentioned. Regarding the welfare of the child provision in the legislation in the United Kingdom, the position is that the clinic must take into account the welfare of a child when deciding whether to offer treatment, including specifically the child's need for a father. That provision has proved to be very controversial in the United Kingtdom. Clinicians are not very happy with having that responsibility placed on them. They believe that is not within their expertise and is not something they should be charged with doing. In some ways it was regarded as having been introduced to exclude certain categories of people from parenthood — single women and lesbian couples particularly — specifically because of the mention of the need for a father. Some clinics have used that section of the legislation to exclude that category of prospective parents.

The Human Fertilisation Embryology Act is undergoing review in the United Kingdom and it is interesting to note that the House of Commons Select Committee on Science and Technology has recommended the abolition of the welfare provision because it believes it is impossible to implement, is of questionable practical value in assessing the quality of parenting and discriminates. It is not, therefore, something we should necessarily follow in this jurisdiction.

A number of comments were made about surrogacy. There is no evidence that any Irish clinics provide surrogacy as a service, yet we know anecdotally that families here have been built using surrogacy services, usually by going to California or the United Kingdom for that service. There are families in Ireland who have children conceived through surrogacy but not through an Irish clinic.

Surrogacy is interesting because in many ways it is an option of last resort for a couple. Obviously, they will try to use their own gametes and reproductive capacity if they have that and only use surrogacy as a last resort. It is not a medically or scientifically complex procedure. If one examines the literature on surrogacy, people say it has been going on for centuries in an informal way where artificial insemination may have been provided of the surrogate mother. The complexity of surrogacy lies in the ethical, legal and social issues that arise from the third party intervention through the gestation of the child.

I want to correct what may be a misunderstanding or misapprehension about the number of cases in which a surrogate mother changes her mind and decides not to relinquish the child. Very few studies have been done of this aspect of surrogacy but the studies that have been done show that it is a very small percentage of cases. A report was issued in the United Kingdom in 1998 by a committee chaired by Professor Margaret Brazier which stated that in between 4% and 5% of cases the surrogate mother changed her mind and wished to keep the child. The evidence in the United States is that it is approximately 1% of cases. The tug of love scenario that is often conjured up when one thinks of surrogacy, therefore, is a very minor aspect of it.

The working group and the commission spent a good deal of time examining the issue of surrogacy despite the fact that it is a fairly minor procedure and does not even happen in Irish clinics. We concentrated initially on deciding whether surrogacy should be prohibited or regulated. If we decided initially it would be prohibited there would be no need for us to go through the ethical and legal issues that might arise. Members will see in the report that we have summarised some of the ethical arguments for and against surrogacy and in the end we decided that prohibition was not a very good option for two reasons. First, we felt that reproductive decision making was something private and should be within the autonomy of the individual or couple as long as there was no demonstrable harm to either the child that would be conceived or to society in general. There is no evidence in any of the literature of any harm caused to either society, whatever that nebulous concept means, or to the children conceived through surrogacy.

The socio-psychological research done on children born through surrogacy demonstrates very high ratings on parent-child interaction, bonding and so on. In so far as these early studies can show, there is no harm to the child as a result of surrogacy. Given that there is no harm to the child, we felt we could not support any intrusion into reproductive decision-making that would come within the privacy of the family, the couple or the individual. We also felt from a practical level that if we tried to prohibit something such as surrogacy it would be unsuccessful. It can happen in private and therefore it does not have to happen in an IVF clinic. In any other jurisdiction that has tried to prohibit surrogacy it has simply gone underground. We felt the most important issue about surrogacy and any of these reproductive technologies was to protect the infertile couple and the child. That is not achieved by driving any of the treatments underground. We felt the best approach was to admit that it happens, acknowledge it and try to protect those who are involved in it by having in place a thorough and comprehensive regulatory regime.

The main issues around surrogacy that we examined were, as members might imagine, the question of payment, namely, whether a surrogate mother should be paid. As a general rule throughout the commission's deliberations we adopted the principle that the commercialisation of reproduction was not something of which we were in favour. This applied as much to surrogacy as to any other treatment. We felt that the surrogate mother should not make a profit from the treatment but neither should she be out of pocket. Her legitimate expenses of going through pregnancy, maternity expenses and so on should be met but she should not enter into the arrangement with the idea that this would be a good career move on her part and that she could do this consecutively for years and make a healthy living out of it.

Another issue that arose was whether the child should be able to identify the surrogate mother. In common with the donor programmes, we felt that if we followed through on the principle that the best interest of the child is of paramount consideration in all of this, the evidence shows that children want and need to know who their biological and genetic parents are. In the same way as children should be able to identify their donor father or mother, the same principle applies to the surrogate.

The legal position is quite complicated in the sense that there is a legal vacuum in regard to assisted reproduction but in regard to surrogacy we could say that the provisions in adoption law may apply, and I say "may" because we do not know that. No cases have been brought to the courts to discover whether adoption law applies. Speculating on what is the legal position, which is all we can do, I suspect that if a surrogacy case were to arise and come before the courts, the likely outcome is that the woman who gave birth to the child would be held to be the legal mother under the provisions of the Constitution. Those provisions would give her a stronger entitlement to custody of the child than the commissioning couple might have. In order for the commissioning couple to have a legal relationship with the child of whom they might be the genetic parents, at present they would probably have to adopt the child or at least the natural father would have to apply for guardianship of the child under the Status of Children Act. The adoption law indicates that if money is paid in consideration of the adoption of a child, that is a criminal offence. Therefore, that raises difficulties in regard to surrogacy.

The commission recommended that the expenses incurred only would be paid to the surrogate mother. Whether the court or the adoption board would take the view that does not violate the provision of adoption law is a matter of conjecture at this point. Ultimately, the position of the commission was decided on the basis that the intent with which all the parties engaged in this arrangement should be respected. A child born through surrogacy would not have come into existence without the joint intention of all the autonomous and competent adults taking the view that the commissioning couple would have custody and responsibility for the child. The recommendation of the commission is that the legal position should reflect that intention and that the law should take the view that the child should be presumed to be that of the commissioning couple.

Professor Donnelly

Another point was raised and it is a matter for the Chairman as to whether he wants it to be dealt with in conjunction with this question. I refer to reproductive cloning and regenerative medicine.

Chairman

We have the time to discuss that issue.

Professor Donnelly

There is also the question of the testing of pre-conception sex selection.

Professor Greene

I will deal with those issues. Pre-conception sex selection to establish the sex of a child a woman may have before conception is not currently successful. There is no technique that can do this. I gather that Deputy Cowley was referring to the testing of an embryo or pre-implantation genetic diagnosis to determine the sex of the embryo which occurs not pre-conception but post-conception. That is a technology that is not available here in the National Centre for Medical Genetics. We do not carry out such work, although testing to establish genetic diseases, a point raised by Deputy Twomey, is something quite a number of families will request. It is often requested by couples who have lost a child who has died from a serious genetic disorder and they do not want themselves or another child to go through the same experience. There is a demand for such testing. Quite a number of Irish couples have gone to the United Kingdom, Belgium and Spain and in their eyes they have been successfully able to have tests such that they have then been able to have a child unaffected by the condition. However, in doing that, embryos have been tested which have been shown to have the genetic abnormality and they have not being used and have been allowed to perish in the country where that test has been conducted.

As the amount of genetic testing increases, potentially there will be considerably more genetic tests available for that kind of technology. Recent European studies reveal that approximately three quarters of all such tests are not done for couples who have lost a child with a genetic disease but for mothers who are getting older and are concerned about having a child with a chromosome problem or who are finding it more difficult to get pregnant. There is certainly a demand for such testing.

In terms of choosing the sex of a baby by this technology, clearly, it is possible to choose the sex for a variety of reasons. Some people have talked about the term "family balancing", which is the idea of being able to choose the sex of a child such that couples have an equal number of boys and girls or there may be other reasons people want to pursue that. Due to concerns about a person being valued not for who they are but what sex they are and due to concerns around the use of this technology being something of a slippery slope, the commission felt it was best to restrict that form of sex selection purely for the diagnosis of serious genetic disorders, which are ones that can affect males and not females but there are also rare ones which affect females but not males. That was the thinking behind that recommendation. Clearly, it is a developing field and it is something of which we will hear much more.

The second issue to clarify is the question of cloning. This issue derived from much media coverage surrounding the creation of Dolly the sheep in 1997-98. This issue came out of the blue. It was possible to take an adult cell from an adult, treat it in such a way that it was possible to replace the centre, the genetic material of that cell, namely, the nucleus, into a new cell and turn it into an embryo which could then be implanted and grown in the womb. Those involved in this process took 273 attempts to create Dolly the sheep, therefore, it was not a very efficient technology. Nonetheless, it has raised many new issues.

A distinction has been made again not so much in the technology that is used but the intent for which it is carried out. Therefore, a distinction is being made between what was called "reproductive cloning" which is where it is aimed to produce a human being with the same genetic code as the person from whom the clone is originating. That is something the commission felt was not acceptable for many reasons, not only biological but ethical, which were discussed. That model has been put forward by many jurisdictions which have introduced legislation or ministerial regulation blocking any such move. However, the same technology can be applied to produce not a human being but a set of cells that could be immortalised as stem cells which have the potential, although that potential has not yet being realised, of producing various types of tissues, be they pancreas tissues for people with diabetes, brain cells for people with Parkinson's disease or heart muscle cells for people with heart disease, as a way of treating a wide variety of currently untreatable disorders. The term "therapeutic cloning" has been used for that as has the term "regenerative medicine". The technology is the same in terms of generating a human embryo, but not allowing it to be implanted in a womb. Instead it is grown in a test tube and produced into a particular tissue or cell type. It has that potential.

For those distinct reasons, the commission looked at cloning in two different ways because of the concern about reproductive cloning. However, it felt that therapeutic cloning may be allowed under strict specific regulations introduced by the body we proposed, which will govern this issue. Nonetheless, it carries much promise. There is also a further element in that there are lines available from human embryos, which are called human embryonic stem cell lines, which are already produced in other countries and which can be transferred from one country to another by researchers. Such embryonic stem cell lines could be brought into this country for research which may help in trying to treat particular diseases.

Professor Donnelly

The question of stem cells was a small part of the request made to us. We were asked to comment on embryos and stem cells. We did not look at it in the detail in which it should be looked at if one wants to progress with it.

Professor Whyte

I will make a brief contribution on pre-implantation genetic diagnosis. Where that is permitted, one accepts the principle that if an embryo has a genetic defect, it is appropriate to destroy it to prevent the cycle of the genetic disease continuing. As regards that and the other issues relating to the status of the embryo, if one cannot draw a clear blue line between the embryo and life at its later stages and once one concedes the principle as regards the embryo, it follows that the same principle can apply to life at a later stage. If that sounds fanciful, then one should read the writings of Professor Pete Singer, an Australian academic, who argues that a newborn infant who suffers from a severe handicap can legitimately be killed because, in his opinion, such are the nature of the defects that the infant does not have the same rights as any other human being. That brings us back to the core of the issue. We are debating fundamental principles about when the right to life should apply. We need to be clear on those principles so that we can understand the future implications of what we decide.

Deputy Twomey

The first recommendation was that a regulatory body should be established by an Act of the Oireachtas to regulate the assisted human reproduction service. If such a body was set up, how many of the commission's recommendations would be covered under that body?

Professor Donnelly

I suspect all of them would be covered.

Deputy Twomey

Perhaps we would have to separate the more difficult ones. Did the commission discuss the conflicting views, for example, if we decided that human life begins at fertilisation?

Professor Donnelly

It took four years to get this report.

Dr. Wingfield

From the point of view of couples going for this treatment, people in our society have different views on the status of the embryo. It is unlikely that we would get an arrangement which would suit everyone. However, the recommendations in this report allow different people with different views to do what they feel is right. There is no compunction on a couple who do not agree with IVF to have IVF. As regards a couple who agree with some aspects of IVF, but not with freezing surplus embryos, under recommendation six we specifically included that providers should facilitate users who wish to avoid any treatment which might result in the production of surplus embryos. A couple could ask that only two or three eggs would be fertilised. However, the couple would need to be counselled that by doing that they are reducing their chances of the treatment working by threefold or fourfold. They are also increasing the risk of multiple pregnancy. However, there is a provision that such couples could choose such treatment. Most couples think seriously about these issues. Other couples who wish to optimise their chances and freeze embryos which they could use in the future would be able to do that also. We tried to provide a range of options which would try to accommodate as many people as possible.

Deputy Cooper-Flynn

We do not agree with euthanasia. Is it all right that someone can practice it in society if someone else feels it is not acceptable? I appreciate the point Dr. Wingfield made about trying to accommodate everyone, but we must make decisions about what we think is best for society. We must consider that issue also.

Deputy McManus

I apologise to Professor Whyte for walking out when he was speaking, but I had a prior engagement. I am interested in the close link with Northern Ireland. Did the commission consider if we should encourage that development? Is it possible to find an all-Ireland way to do this in the future? Can a link be made between the two bodies when a statutory body is set up here? Perhaps the commission could comment on this.

Dr. McCarthy

Perhaps I could comment on it as I come from the Northern Ireland perspective where I work as a public health physician. Because we are regulated by the Human Fertilisation and Embryology Authority we sit with the UK body. That is the legislation which applies. It is entirely within this jurisdiction to determine whether that would be appropriate or whether something separate is needed for Ireland. The view of the commission was that an Act should be introduced here which may reflect some aspects of the HFEA, but which also may have some unique aspects which reflect a different situation.

Deputy McManus

I was not talking about legislation, but about the structure of the new regulatory body. I wanted to know if there was any value in trying to link it with the structure in Northern Ireland.

Professor Donnelly

The Minister originally requested us to look at the position in Northern Ireland and elsewhere in the United Kingdom. As the United Kingdom is ahead of the world in terms of this topic, it was a reasonable request. However, knowing the situation in Ireland, I strongly felt we should go slightly beyond it. We looked at many other countries because we were conscious of the international scene. That is why there is a lot of information internationally as well as from the United Kingdom. I do not know enough about how it would work between the North and South.

Professor Whyte

As regards Dr. Wingfield's argument about the question of freedom, as a society, we accept that we can coerce individuals from taking certain action where that threatens the right to life. If Professor Singer, for example, lived in Ireland and felt it was morally appropriate for him to kill his newborn child because it suffered from a physical or mental defect we, as a society, would stop him.

Professor Greene

There are many informal links between both the human reproduction and genetic services north and south of the Border in terms of meetings and discussions. It may not reflect legislation, but information is exchanged. I have met Dr. McCarthy on numerous occasions.

Professor Donnelly

There are no borders in science.

Senator Henry

The clarity of all the explanations has been helpful. I read the commission's report carefully. I am sure everyone agrees with this.

Chairman

I thank the commission. It is important that it is able to meet us at any time. We will have some time between now and November to go through the report. If members feel we need a private committee meeting to work out details or a public meeting to discuss it, we can arrange it. The schedule has been set out and it will be circulated to members.

Deputy Cooper-Flynn

The timing may not suit everyone on the committee for reproductive reasons. Could some of those meetings be held in October?

Chairman

I hate to say no, but we have other issues to deal with in October. It is scheduled for November and the meetings might last longer than this. In the meantime, it is worth recognising that the commission has sat for four years and has stated it will engage in follow up work for the committee. We should, therefore, thank its members. The committee will not resolve every health issue but this is one of most important matters to come before it. We must be proactive in dealing with the recommendations as best we can. A number of statistics are important. For example, one in six couples is infertile. Ireland has fertility clinics and 1,000 babies a year are born following fertility treatment but there is no regulation in this area. It is up to us. We can sit back and pretend nothing is happening or we can bring in regulations and controls. It is important that we should do so. Professor Donnelly asked how many recommendations we can implement and the answer is we can go with many of them. We are not here to resume the debate about where human life begins. The reality is babies are born following fertility treatment and the State has no controls whatsoever.

Many attending clinics believe regulation is in place. The committee should highlight no such regulation exists and legislation is not proposed.

The most important questions are why the commission sat and why the committee is sitting now. The Minister for Health and Children, recognising recent scientific leaps, established the commission. It has reported and the committee has been asked to go through the recommendations and to issue its own. For those who have written letters to me and other members asking whether the committee is operating outside its brief, the answer is no. I do not mind getting letters but I will not reply to them. I would prefer to invite people to observe the committee's deliberations, which are open and transparent. They can also make representations at the end. IVF is taking place without regulation, control or the involvement of expert personnel. I hope members can work together to produce an appropriate result, not necessarily as quickly as possible, in the coming few months.

I thank Professor Donnelly and her colleagues. The committee will do everything it can in the next few months to ensure as many members as possible can attend the meetings.

The joint committee adjourned at 12.25 p.m. until 10.30 a.m. on Thursday, 22 September 2005.