No Need for a Father: the Human Fertilisation and Embryology Act 2008
Introduction
The Human Fertilisation and Embryology Act 2008 (“the 2008 Act”) has had a
controversial1 passage through both Houses of Parliament. It follows governmental
review of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) conducted
with a view to reforming the regulation of assisted reproductive technology and human
embryo research. Part I of this article aims to analyse critically the 2008 Act, looking in
particular at the removal of the requirement in the 1990 Act that IVF providers should
have regard to a child’s need for a father before providing treatment. Particular attention
is paid to the question of whether these so-called “fatherless child” provisions evince a
concern for the welfare of the child or instead, afford priority to the reproductive liberty
of adults. In Part II, regard will be had to the current disclosure requirements on gamete
donations and whether they adequately vindicate a child’s right to know his or her
biological identity. Particular attention will be paid to whether these requirements are
consistent with trends in domestic and international law toward biological truth.
Proposals for reform of this area of the law will also be assessed.
PART I
The Human Fertilisation and Embryology Act 1990: blood isn’t necessarily thicker
than water
The 1990 Act was significant in that it established that parental status, in the context of a
child conceived through assisted reproduction treatment, could be conferred on a person
not on the basis of their biological connection to the child but rather their intention to act
as parent in the social sense.
If a married woman decided with her husband to consent to the use of donated gametes in
order to conceive, then according to s.28(2) of the 1990 Act, the husband would be
treated as the child’s father. Section 28(3) provided that if the woman was not married,
but sought treatment for “her and a man together”, then the law would treat that man as
the legal father. In neither case would the sperm-donor be registered as the biological
father of the child. Meanwhile the commissioning mother was to be regarded, according
to s.27(1), as the legal mother even though conception was assisted with the implantation
of donated eggs.
Section 30 of the 1990 Act also addressed the issue of surrogacy arrangements and
provided for parental orders to be made in favour of a married couple so long as the
arrangements were not motivated by commercial factors. In contrast to the spirit of
s.27(1), the commissioning mother would only be conferred with legal parental status by
virtue of a parental order. If the biological mother—the surrogate—otherwise withheld
consent to the granting of an order, she would remain the child’s legal parent.
Whilst the architecture of the 1990 Act was based on the traditional nuclear family with a
heterosexual relationship between mother and father at its core,2 it nonetheless marked a
significant departure in family law thinking. Parental status was to be conferred, in
limited circumstances, upon the social rather than the biological parent. This
paradigmatic shift may reflect the realities of contemporary family life but whether it
ensures that the welfare of the child remains central is open to doubt. As Watt rightly
notes, assisted reproduction is “hardly conducive to the unconditional acceptance of a
child”.3 The creation of a child is reduced ultimately to a “process of production: a
process of retrieving and combining biological materials.”4 The essence of this
“producer to product” relationship is one of “domination and control...[i]t is not a
relationship of recognised equality in dignity, of the kind we normally require in
interpersonal relationships.”5
The Human Fertilisation and Embryology Act 2008: the “fatherless child”
provisions
In the 1990 Act at s.13(5), one of the factors to be considered in assessing whether
assisted reproduction treatment should be permitted was the child’s need for a father.
This is now replaced with an obligation on IVF providers to consider “the need for
supportive parenting”.6 Yet, as Bainham points out, this is clearly at odds with
government policy in other areas of child welfare. Under its proposal for joint birth
registration, the Department for Work and Pensions pursued a policy of promoting
parental responsibility in the area of child support. It pointed to research evidence which
established that unmarried mothers registered as lone parents and seeking child support
were likely to be younger, poorer and have lower levels of educational attainment.7 The
policy pursued on foot of these findings evinces a recognition of the fact that “fatherchild
relationships, be they positive, negative, or lacking, have a profound and wide
ranging impact on children that last a lifetime, particularly for children from the most
disadvantaged backgrounds.”8 If this is so, why are children born of assisted
reproduction treatment not in need of a father? Are such children immune from the
profound and wide ranging impact that a lack of father-child relationship evidently
causes?
In Part III of the 2008 Act, the “move towards the concept of parenthood as a legal
responsibility rather than a biological relationship”9 becomes apparent. The attribution of
fatherhood which attaches to the husband of a woman receiving IVF continues and is
extended in s.42 to the partner of a woman who is party to a civil partnership.10 As for
cohabitees, the “agreed parenthood” conditions in ss.37 and 44 provide a mechanism for
the partner of a woman who is not either married or party to a civil partnership to consent
to the conferral of parental status. Section 37 contains the “agreed fatherhood”
conditions in the case of a heterosexual partner whilst s.44 applies to the case of a samesex
lesbian relationship where “agreed female parent” status is conferred on what s.43
describes as the “second woman”. It is here that the instance of the fatherless child is
expressly provided for.11
Baroness Deech remarks that s.13(5) was “one of the few ethical principles in IVF law
and served as a reminder that the welfare of the child is more important than the wishes
of the would-be parents.”12 That a child’s need for a father is a necessary consideration
in any welfare determination is an “eminently sensible provision that sends out a vital
signal about the centrality of fathers”.13 It seems that her observation over a decade
earlier that “men are nothing more than mobile sperm banks…their role over as soon as
conception has been achieved …”14 is becoming firmly embedded in our legal order.
This policy “overlook[s] the contribution made by half the human race to the upbringing
of the next generation”15 and more generally undermines efforts being made to hold
fathers to their parental obligations.
The “welfare principle” or “reproductive liberty”?
Eekelaar wrote in the late 1980s that “the principle which informs modern child law is
not that the interests of mothers or fathers are paramount, but that the interests of children
are.”16 It seems that there has been a significant departure from this position to one where
the interests of would-be parents enjoy paramountcy. Callus remarks that “the [Act’s]
provisions are merely one example of a move towards recognising legal parental status
on the basis of individual choice. Yet this choice may be transient and exercised in
complete ignorance of the interest of the child”.17 Regrettably this development seems
consistent with the logic of the familial experimentation initiated with IVF some decades
ago: why should we be surprised that “children who are physically produced like
manufactured products are...treated as products”?18
Some commentators would argue that the welfare principle has no place in the regulation
of assisted reproduction technology. They believe the principle to be inherently
prejudiced and discriminatory.19 Indeed, some would go as far as to say that reproductive
liberty demands recognition of “the entitlement of individuals to make their own
reproductive choices and to celebrate this freedom as they so choose.”20 The better view
is that offered by Baroness Deech:
“The family unit has traditionally been the building block of most relationships.
As such, it is regulated by every society with rules governing marriage, divorce,
adoption and child care. The need to regulate assisted reproduction grows from
this. Assisted reproduction techniques … are surrounded by difficult and
complex issues which pierce the heart of our perceptions about humanity, about
what purposes medicine and science are here to serve and about society’s fears
and concerns.”21
Bainham cites “priority for the rights and interests of those primarily affected”22 as a
crucial consideration in any decision to permit assisted reproduction treatment. If the
welfare principle holds true, then the interests of the potential child ought to trump those
of the commissioning adult(s).
Proponents of reproductive liberty often draw analogies between the provision of assisted
reproduction treatment and civil partnerships, as well as adoption. If adults are free to
contract to civil partnerships, is it not discriminatory to deny them legal parental status
over children born of assisted reproduction treatment? If same-sex couples are free to
adopt, why, in the context of assisted reproduction treatment, does legal parental status
not arise for both parties as of right? However, Bainham cautions that such analogies are
at best limited and at worst false. Regarding the former, “civil partnership is about
regulating the relationship between two adults, as is marriage, and is not about the
relationship between adults and children”.23 The decision to have a child is one that
ought to be child-centred, with the reproductive liberty of the adults involved a
subordinate, albeit important, consideration. As for adoption, a fundamental difference
can be observed: “adoption is by definition concerned with an existing child whereas
assisted reproduction is concerned with a potential child”.24 Adoption arises in the
context of an existing social relationship between the child and the biological parent.
Only after a probationary period under judicial supervision, where the child’s welfare has
been assessed with the closest scrutiny, will an order for adoption be granted. Such
conditions do not, indeed cannot, obtain in the context of assisted reproduction. It does
not follow, therefore, that same-sex couples, because they can acquire legal parental
status with regard to an adopted child, ought to gain the same with regard to a child born
of assisted reproduction treatment.25
The “lego kit model of family construction” and the “motherless child”
If the welfare of the child remains the guiding principle which informs modern child law,
it should be remembered that “… the weight of evidences indicates that the traditional
family based upon a married father and mother is still the best environment for raising
children and it forms the soundest basis for the wider society.”26 Morgan emphasises that
the roles of mothers and fathers “are not interchangeable”27. Both are essential “for
healthy childrearing” with each bringing their own “unique strengths’ to the family
unit.”28 In no way can the “lego kit model[s] of family construction”29 propounded in
this Act do anything for the health and well-being of the fundamental unit group of
society. Bainham rightly cautions that “[t]he concept of parentage should ... be confined,
to reflect as far as possible, the unique position of biological parents and, through the
child’s filiation with them, the wider kinship links to the extended maternal and paternal
families”.30 Moreover, if society is to enjoy order, cohesion and ultimately progression,
it seems incumbent upon government to defend this fundamental unit group from attack
rather than actively to participate in its destruction.
Equally worrying is the prospect of motherless children arising. Callus observes that
where male same-sex couples rely on surrogacy to have a child, under proposed reforms
published by the Department of Health in 2006, parental orders under s.30 of the 1990
Act could be made in favour of the same-sex couple, with the surrogate mother remaining
anonymous. The “mother hunger” this would give rise to would do nothing other than to
replicate the problems of instability and poor relationships already experienced as a
consequence of “father hunger”.31 As Lord Scott remarked in Re G (Children32),
“mothers are special”.33 In the same case, Baroness Hale went on to remind that a
biological mother combines the genetic, gestational, social and psychological
components of parenthood in a way that no other person can.34 This then begs the
question why the government seems intent on forcing the law of filiation down the
counter-intuitive road offered by the 2008 Act.
Parental status or responsibility?
Callus identifies one of the key flaws in the 2008 Act: its conferral of parental status on
the “second woman” in the context of female same-sex relationships. By recognising
this, she says, “the child’s identity is thrown into disarray because the recognition of two
female parents conceals the necessary heterosexual element of human existence.”35 This
illustrates, she asserts, “the confusion that reigns at the highest levels between parental
status and parental responsibility.”36 An appropriate mechanism already exists for giving
legal recognition to the parental responsibility of the “second woman” under the Children
Act 1989. To go further, as this Act does, and confer parental status on such a person is
to fictionalise the child’s identity and “increase the circumstances under which biological
parentage is divorced from legal parentage”.37 Not only does this “distort and
misrepresent kinship” but, where there is a proliferation of legal parents, it moves the law
of filiation further away from the traditional view that a child has one father and one
mother.
The Irish Position: The Report of the Commission on Assisted Human
Reproduction 2005
Currently in Ireland, assisted reproduction treatment is regulated, on a voluntary basis, by
the Medical Council. In 2005, a Government appointed Commission recommended that,
in the interests of child welfare, an Act of the Oireachtas should be passed establishing a
regulatory body which would regulate assisted reproduction treatment services in
Ireland.38 Among the body’s executive functions would be the issuing of licences to
service providers. The Commission’s forty recommendations seem to be consistent with
trends in the United Kingdom in this area. It recommended that gamete and embryo
donation, as well as surrogacy arrangements, ought to be permitted and regulated.
Provided the welfare of the child is taken into account by clinicians when deciding
whether treatment should be provided, unmarried and same-sex couples ought not be
denied treatment on grounds of marital status or sexual orientation.39 In all cases, the
recipient(s) of treatment would be regarded as the legal parent(s). However, any donorconceived
child, on reaching an appropriate age of maturity, would be entitled to access
the identity of the donor(s) involved in their conception40—their genetic parents. It also
recommended that some forms of embryo research be permitted but that human
reproductive cloning should be prohibited.41 It further recommended that the generation
and use of interspecies human embryos should be prohibited.42
The interpretation of Art.40.3.3 of the Constitution43 and its express protection for the
right to life of the “unborn” was also addressed by the Commission. There is at present
uncertainty as to whether the term “unborn” extends to an embryo that has not yet been
implanted in the uterus . The Commission expressed the view that an embryo ought only
be considered “unborn” for the purposes of Art.40.3.3 once implanted in the uterus.44 An
embryo prior to implantation would not, therefore, enjoy a constitutionally protected right
to life. This would leave open the possibility—not currently available under the Medical
Council’s guidelines45—of medical and scientific research which resulted in the
destruction of pre-implantation embryos. The Commission recommended that the
uncertainty be resolved either by a Supreme Court decision on the matter or by
constitutional amendment.46
The Commission set out to offer an answer to the question “should science do everything
that science can do?” that was “broad enough to be generally acceptable to all individuals
and groups in society”. It is not altogether clear that this was achieved. Whilst the
Commission’s recommendations are more conservative than the provisions of the 2008
Act in the United Kingdom, they would, if implemented, move Ireland ever closer to the
ethically unsound position where the reproductive autonomy of adults takes precedence
over the welfare of children. Moreover, by providing for medical or scientific research
resulting in the destruction of embryos, sanctity of life would be further undermined and
a position would be reached which would seemingly run counter to the procreative
motivations—however flawed these might be—of the assisted reproduction project. On
one hand, the law would be providing for an almost untrammelled right of an adult to
procreate, to generate life, and at the same time, it would be legitimising the wilful
destruction of life in its very infancy. As a consequence, the Commission’s
recommendations fall foul of the general criticisms levelled at the 2008 Act.
PART II
Donor anonymity and the “embryological secrecy syndrome”
Feast and Brasse identify the “embryological secrecy syndrome”47 which the 1990 Act
spawned and which the 2008 Act perpetuates. The anonymity which surrounds gamete
donation leaves those children born of assisted reproduction treatment denied of the right
to knowledge of their genetic identity. This secrecy is justified on four grounds:
(i) to protect adults from embarrassment;
(ii) to protect the supply of gametes;
(iii) to protect the children from the emotional and psychological impact of
disclosure; and
(iv) to protect the children from the prejudices of others.48
The first two of these grounds relate not to the welfare of the child but to the interests of
parents and would-be parents. The existence of embarrassment may be due to the
admission of infertility. It may point to “a perceived lack of respectability in the
arrangement … as if the donors had done something of which they should be ashamed”,
especially when compared to adoptive parents who exhibit no such embarrassment.49 As
for the fear of gamete donations drying up if disclosure was permitted, Sweden’s
experience after it legislated for mandatory disclosure of donor’s identities would tend to
back this up.50 Nevertheless other countries have followed suit. Austria, Australia (the
State of Victoria), and New Zealand, whether by legislation or practice, pursue a policy
of disclosure and are already seeing signs of this encouraging “a more mature and
altruistic kind of donor.”51
Feast and Brasse also provide cogent evidence of the “profound shock”52 experienced by
children when they discover in later life the circumstances of their conception.53 Feelings
of “abandonment, rejection and betrayal” are commonplace with many speaking of
having “part of their identity missing”.54 As for secrecy protecting children born of
donor gametes from the prejudice of others, there seems to be “no good reason why …
[they] should be treated any differently than…child[ren] born after natural conception
and gestation.”55 The fact remains that such children are born to families “who
unwaveringly wished for a child”56. Why should the parent-child relationship which
exists be jeopardised by concealing from the child the truth of his or her assisted
conception?
A right to inquire but no duty to tell
The veil on gamete donor anonymity in England has been lifted somewhat so that now a
child conceived of assisted reproductive technology, on reaching the age of majority, has
a right to inquire as to the identity of his or her biological parents. The Human
Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations
2004 provided that after April 1, 2005, all new gamete donors must be identifiable to
donor-conceived people when the latter reach the age of majority.57
However, as Lord Alton observes, “this gives a right to inquire but no duty to tell”,58 a
position which remains unaltered in the new Act. The drafters of the 2008 Act would
have done well to take on board the findings of the South Australian Council on
Reproductive Technology. It recommended, after extensive consultation, that recipients
of assisted reproduction technology give an undertaking to tell their offspring of the
method of their conception.59 In the absence of such an undertaking, this information
could be denied to the child long into adulthood and so their right to inquire rendered
impotent. More importantly, delay in disclosing the child’s true biological identity after
majority is likely to intensify those feelings of abandonment, rejection and betrayal
referred to earlier. A further concern is that noted by Bainham:
“The [Act], as it stands, is capable of discriminating in favour of the donorconceived
children in same-sex relationships and against those who have
opposite-sex legal parents. This is because it will become clear, at a relatively
early age to the children of same-sex parents, but not to those of opposite sex
parents, that those parents cannot both be the biological parents.”60
Consequently, it could be argued that a child’s right to know his identity and parentage
will be real—in the sense that it will be meaningfully exercised—by children born to
same-sex legal parents but illusory for donor-conceived children born to opposite-sex
legal parents.
A child’s right to know his identity and parentage
Whether the current level of disclosure is compatible with international law is
questionable.61 Articles 7 and 8 of the UN Convention on the Rights of the Child 1989
provide that the child has a right “to preserve his identity including nationality, name and
family relations” and the right “as far as possible … to know … his parents”. The
Committee on the Rights of the Child has asserted that certain rights in the Convention
enjoy an elevated status and should inform the implementation of all the provisions of the
Convention. These include the principle of non-discrimination under art.2 and the best
interests of the child under art.3.62 The child’s right to know his identity and parentage,
including his biological parentage, is enhanced further by art.8 of the ECHR—the right to
respect for family life—and its interpretation in Marckx v Belgium63 where it was held
that it extends to de facto family ties based on genetic relationships. This was reiterated
by Scott Baker J in Rose v Secretary of State for Health and Human Fertilisation and
Embryology Authority64:
“Respect for private and family life has been interpreted by the European Court to
incorporate the concept of personal identity…Everyone should be able to
establish details of his identity as a human being…That, to my mind, plainly
includes the right to obtain information about a biological parent who will
inevitably have contributed to the identity of his child.”65
The law has increasingly committed itself to biological truth with a strong trend
observable against legal fictions. The decline of the pater est presumption provides
eminent evidence of this.66 In as series of cases, the ECtHR has held that States must
provide an individual with a reasonable opportunity in which to challenge existing
paternity, and that a proportionate balance must be struck between legal certainty in the
law of filiation and an individual’s right to biological truth.67 Why then does the
Government seem intent on preserving the “embryological secrecy syndrome” by
permitting the entry of a “deliberate biological lie on a birth certificate”?68
In a case which reiterates the need for there to exist a de facto relationship between parent
and child before the provisions of art.8 can be invoked, Dame Butler-Sloss P held that
there was no family life between the children and their genetic father. Leeds Teaching
Hospitals NHS Trust v A69 arouse out of circumstances where a woman was inseminated
by mistake with sperm from someone other than her husband. Ultimately the court held
that because the treatment fell outside the bounds of s.28 of the 1990 Act, biology had to
take priority over the social reality of the de facto parent-child relationship: the children’s
biological genitor, and not their mother’s husband, was conferred with parental status.
Nevertheless, Dame Butler-Sloss P’s reiteration of the need for there to exist de facto
“family life” between a child and its genetic parent offers the interesting corollary that
where “a known, and by definition unregulated, donor could have a recognised Article 8
right if he did in fact enjoy a relationship with the child”. Consequently, art.8 of the
ECHR might present an obstacle for those intent on the “de-sexualisation of
procreation”70 and the denial to children of half their genetic identity.
Whilst the right to family life is not absolute, any interference with this right must be
proportionate. The right to a child’s birth information is accordingly circumscribed so
that, at least in the context of adoption, the principle of proportionality is invoked to
strike a fair balance between the claims of the child for disclosure of information and the
right to privacy of the biological parent.71 That said, Kilkelly’s survey of the case law on
this point would lead one to conclude that ‘there is more than a suggestion that, from the
outset, the scales are tipped in favour of the child whose fundamental right to identity is
at stake.’72
A practical solution
As Lord Alton cautions, “[o]ne of the deepest questions that we ask ourselves is ‘who am
I?’73 The right to lineage affects us all – and uncertainty of parentage can be profoundly
unsettling”74. One way of injecting some transparency into the process is to “move from
static birth certificates to more flexible … computer-based through-life record[s]”75.
These would permit the recording not only of legal and social parents but also the identity
of biological parents. One consequence of this, Probert believes, is that “[t]he parents’
knowledge that disclosure would be inevitable might encourage them to tell their child at
an earlier stage”76. Lord Alton makes a similar proposal:
‘When a child comes into the world, parents would get two birth certificates, a
long and short version. These should accurately tell the child’s true story.
One certificate could contain the basic facts of your birth while the longer
version could record the fact of conception by donor. When using the certificate
to obtain a passport or driving licence it would thus be possible to sustain family
privacy while also allowing for truthfulness.’77
The ability to ascertain in privacy one’s true identity, he believes, might in turn “lessen
the chances of tragic outcomes in the future”78.
Tragic outcomes of secrecy
The “tragic outcomes” he speaks of extend beyond the denial of satisfying those “ancient
desires to know lineage, genealogy and identity”.79 They include the potential for an
increase of relationships within prohibited degrees. He cites the following example:
“In Britain, the Human Fertilisation and Embryology Authority draws the line at
10 donor-conceived children. In the case of sperm donation – since the sperm donations would probably
be at the same IVF clinic or at least in the same city, and possibly all within a year
or so, for example a student at university – there may well be a good chance that
children born from these donations will grow up in the same city at around the
same time, possibly some of them going to the same school, even in the same year
group.”80
He rightly concludes that “[w]ithout absolute knowledge of your genetic profile the
possibility of unwitting incestuous relationships is obvious.”81
CONCLUSION
Much can be said about the 2008 Act. The “fatherless child” provisions discussed here
represent only the tip of the proverbial iceberg when it comes to the Act’s overall attack
on the family, and on life at its most basic and vulnerable. It would be easy for these
provisions to pass under the radar of scrutiny as attention was directed at the more
profound moral and ethical issues raised by the Act. Its provision for animal-human
hybrids, “saviour siblings” and the associated commodification of children, and further
liberalisation of abortion laws, will no doubt dominate the debate. However, the
“fatherless child” provisions ought not go without scrutiny. The provisions subordinate
the welfare of the child to favour the reproductive liberty of adults. They also deny a
child its right to know its biological identity. And when viewed in the round, they
represent an attack on the fundamental unit group of society. Consequently, this Act can
only be corrosive for the present and future well-being of children, families and society
as a whole.
* LL.B. (Dubl.) LL.M. (Cantab.)
1 See, for instance, the comments of Cardinal Keith O’Brien, condemning the Government’s proposals as
“monstrous” and of “Frankenstein proportion”. Gledhill and Lister, “Cardinal Keith O’Brien attacks
‘monstrous’ human embryo Bill”, The Times, March 22, 2008.
2 Callus, “First ‘Designer Babies’, Now À La Carte Parents”, 38 Family Law 143.
3 Watt, “Ethical Aspects of IVF”, (2004) Yearbook of the Irish Philosophical Society 170 at 176.
4 Watt, “Ethical Aspects of IVF”, (2004) Yearbook of the Irish Philosophical Society 170 at 177.
5 Watt, “Ethical Aspects of IVF”, (2004) Yearbook of the Irish Philosophical Society 170 at 177.
6 Section 14(2)(b).
7 Joint Birth Registration: Promoting Parental Responsibility, Department for Work and Pensions, Cm.
7160 (June, 2008). Cf. Bainham, ‘Arguments About Parentage’, 68 CLJ 322.
8 Joint Birth Registration: Promoting Parental Responsibility, Department for Work and Pensions, Cm.
7160 (June, 2008) at para.15. Quoted in Bainham, ‘Arguments About Parentage’, 68 CLJ 322 at 329.
9 Joint Committee on the Human Tissue and Embryos (Draft) Act (2006-07) HL Paper 169, HC Paper 630
(TSO, August 2008), para.263.
10 The lesbian partner in this case is not treated in law as the child’s father but an agreed female parent.
11 Of course under the 1990 Act, fatherless children are possible where, for example, a single woman
receives treatment with donated sperm with the donor’s consent. As has been stated, however, under the
1990 Act, it is necessary to consider the child’s need for a father in deciding whether or not assisted
reproduction treatment should be given. Whilst the potential for a “fatherless child” remains under that
scheme, the proposed Act goes much further. It not only eliminates the “need for a father” consideration in
deciding whether or not to grant treatment, but expressly provides that a lesbian woman will be permitted
to perform the role of a father.
12 Deech, “Test-Tube Babies Need Fathers”, The Times, January 17, 2008.
13 Deech, “Test-Tube Babies Need Fathers”, The Times, January 17, 2008.
14 Deech, “The Rights of Fathers: Social and Biological Concepts of Parenthood” in Eekelaar and Sarcevic
(eds.) Parenthood in Modern Society: Legal and Social Issues for the Twenty-First Century (London:
Martinus Nijhoff, 1993), p.19.
15 Deech, “The Rights of Fathers: Social and Biological Concepts of Parenthood” in Eekelaar and Sarcevic
(eds.) Parenthood in Modern Society: Legal and Social Issues for the Twenty-First Century (London:
Martinus Nijhoff, 1993), p.19, no.3.
16 Eekelaar, “When is a Parent Not a Parent? Reflections on the Unmarried Father and his Child in English
Law”, (1989) 3 International Journal of Law and the Family 208–238.
17 Callus, “First ‘Designer Babies’, Now À La Carte Parents”, 38 Family Law 147.
18 Watt, “Ethical Aspects of IVF”, (2004) Yearbook of the Irish Philosophical Society 170 at 170.
19 See Jackson, “Conception and the Irrelevance of the Welfare Principle”, (2002) 65 Modern Law Review
176.
20 Alghrani and Harris, “Reproductive Liberty: Should the Foundation of Families be Regulated?” [2006]
Child and Family Law Quarterly 191 at 210.
21 Deech, “Infertility and Ethics”, [1997] Child and Family Law Quarterly 337.
22 Bainham, “Arguments About Parentage”, 68 CLJ 322 at 323–324.
23 Bainham, “Arguments About Parentage”, 68 CLJ 322 at 337.
24 Bainham, “Arguments About Parentage”, 68 CLJ 322 at 338.
20
25 Bainham argues that the Act’s approach “gives full weight to the autonomy of the adults who desire a
child by [assisted reproduction methods] but it can be criticised for failing to give priority to the interests of
thie child” and that “the child’s capacity or potential for autonomy ... needs to be protected”. Bainham,
“Arguments About Parentage”, 68 CLJ 322 at 347.
26 O’Neill, “Experiments in Living: The Fatherless Family”, Civitas: The Institute for the Study of Civil
Society (September, 2003), p. 14.
27 Morgan, “How Do Fathers Fit In?”, Civitas: The Institute for the Study of Civil Society available online
at http://www.civitas.org.uk/hwu/FatherFactsheet.pdf
28 Morgan, “How Do Fathers Fit In?”, Civitas: The Institute for the Study of Civil Society available online
at http://www.civitas.org.uk/hwu/FatherFactsheet.pdf
29 Family Education Trust. Evidence submitted to the Parliamentary Joint Committee on the Review of the
Human Fertilisation and Embryology Act, Vol. II, Ev 69. Available online at
www.parliament.uk/documents/upload/HTEV69.doc.
30 Bainham argues that the Act’s approach “gives full weight to the autonomy of the adults who desire a
child by [assisted reproduction methods] but it can be criticised for failing to give priority to the interests of
thie child” and that “the child’s capacity or potential for autonomy...needs to be protected”. Bainham,
“Arguments About Parentage”, 68 CLJ 322 at 349.
31 For an analysis of the consequences of “father hunger” see Blankenhorn, David, Fatherless America:
Confronting Our Most Urgent Social Problem (New York: Basic Books, 1995). Cf. Byrd, “Gender
Complementarity and Child-rearing: Where Tradition and Science Agree”, 6 (2004) Journal of Law and
Family Studies 213; Gallagher, “(How) Does Marriage Protect Child Well-Being?”, in George and Elshtain
(eds.), The Meaning of Marriage: Family, State, Market and Morals (Dallas, 2006). For an analysis of the
consequences of “mother hunger”, see Eisold, (1998) “Recreating mother: The consolidation of
‘heterosexual’ gender identification in the young son of homosexual men”, American Journal of
Orthopsychiatry 68:3:433–442.
32 [2006] 2 F.L.R. 629.
33 [2006] 2 F.L.R. 629 at 631.
34 [2006] 2 F.L.R. 629 at 641. Bainham, “Arguments About Parentage”, 68 CLJ 339–340. Also Bainham,
“Who or What is a Parent” , 66 CLJ 30–32: “...[T]he recognition given to the value of natural parenthood
and the significance attached to the beginnings of life [in Re G] are much to be applauded and chime very
well with the child’s rights under Articles 7 and 8 of the United Nations Convention on the Rights of the
Child. The view that the person looking after a child is at least the equivalent of a parent, and may have an
even stronger claim to be regarded as the parent, is beloved of certain academics. It is unlikely to strike
much of a chord with ordinary people who are well able to distinguish between parents and others
looking after children.”
35 Callus, “First ‘Designer Babies’, Now À La Carte Parents”, 38 Family Law 146.
36 Callus, “First ‘Designer Babies’, Now À La Carte Parents”, 38 Family Law 146.
37 “There is a strong tendency to assume that this status necessarily needs to be that of parent. The fact that
someone is doing some of the things which parents do does not make that person the parent.” Bainham,
Arguments About Parentage’, 68 CLJ 348.
38 Commission on Assisted Human Reproduction, Report of the Commission on Assisted Human
Reproduction, (Dublin: Government Stationery Office, 2005).
39 “Services should be available without discrimination on the grounds of gender, marital status or sexual
orientation subject to consideration of the best interests of any children that may be born. Any relevant
legislation on the provision of AHR services should reflect the general principles of the Equal Status Acts
2000-4 subject to the qualifications set out in section 4.8”. Recommendation 17, Commission on Assisted
Human Reproduction, Report of the Commission on Assisted Human Reproduction, (Dublin: Government
Stationery Office, 2005), p.34.
40 Though no legal responsibilities would arise for donors from such access. Recommendation 22,
Commission on Assisted Human Reproduction, Report of the Commission on Assisted Human
Reproduction, (Dublin: Government Stationery Office, 2005), p.46.
41 Regenerative medicine i.e. where “[t]he objective is to generate a stem cell line that in turn can be used to
generate a particular tissue for treatment of a specific disease” is one form of embryonic research permitted
21
under the Report. Recommendation 36, Commission on Assisted Human Reproduction, Report of the
Commission on Assisted Human Reproduction, (Dublin: Government Stationery Office, 2005), p.62.
42 This is unlike the position adopted by the United Kingdom in the 2008 Act which permits the creation of
so-called ‘human admixed embryos’, or more popularly, “human-animal hybrids”.
43 Commission on Assisted Human Reproduction, Report of the Commission on Assisted Human
Reproduction, (Dublin: Government Stationery Office, 2005) see especially Appendix III, pp. 91–96.
44This view found judicial support in the High Court case of MR v TR [2006] IEHC 359. The case was
brought by a woman who sought to have her frozen embryos implanted without her estranged husband’s
consent. She argued that her former husband was bound by the original consent form to allow the
implantation of the remaining frozen embryos. She also argued that Art.40.3.3 of the Constitution afforded
the frozen embryos a right to be implanted and given the opportunity to live. McGovern J. held that the
claimant’s former husband was not bound by his original consent and further, Art.40.3.3 was not applicable
to pre-implantation embryos. A definitive decision from the Supreme Court is awaited. Carr comments:
“In the words of Justice Hederman in the famous X case, cited by Justice McGovern, ‘[o]ne cannot make
distinctions between individual phases of the unborn life before birth or between unborn and born life.’ The
embryo, from the beginning, is a distinct, separate, self-ordering organism, so it is not ‘just a ball of cells’
as is sometimes claimed, or mere ‘genetic material’, in the words of Justice McGovern. It is a human
organism, and it is alive. In other words, it is a human life.” Carr, ‘The Irish Frozen Embryos Case’, The
Linacre Centre of Healthcare Ethics, available online at http://www.linacre.org/IrishFrozenEmbryos.pdf.
45 “In a rapidly evolving and complex area, doctors are reminded of their obligation to preserve life and to
promote health. The creation of new forms of life for experimental purposes or the deliberation and
intentional destruction of in-vitro human life already formed is professional misconduct”. “A Guide to
Ethical Conduct and Behaviour”, The Medical Council (Dublin, 2004, 6th ed.), p.35.
46 This uncertainty has recently been exploited by University College Cork and its controversial decision to
permit the use of embryonic stem cells for research purposes. Professor Binchy of Trinity College Law
School observed that such a development was to be regretted as it involved “the termination of the lives of
human beings”. Donnellan and Ahlstrom, “UCC debate to fuel calls for national stem cell policy”, The
Irish Times, October 28, 2008. See also Quinn, ‘Politicians have a duty to stop embryo research’, The Irish
Independent, October 31, 2008.
47 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897.
48 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 903.
49 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898.
50 In fact, the evidence shows that after an initial drop in donations, they gradually increased. A
McWhinnie, “Who am I?’ Genealogical Disadvantage for Children from Donated Gametes”, in E. Blyth,
M. Crawshaw and J. Speirs (eds), Truth and the Child 10 Years On: Information Exchange in Donor
Assisted Conception (The British Association of Social Workers, 1998).
51 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 899.
52 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898–899.
53 See, for instance, evidence given to the Joint Committee on the Human Tissue and Embryos (Draft) Act
in 2006. David Gollancz, a donor conceived person, submitted that when first told of how he was
conceived, “it was as though someone had taken my autobiography and torn it up.” He argued that “where
the state intervenes ... it has a duty to protect that right [to be informed] not to be deprived or deceived”.
Joint Committee on the Human Tissue and Embryos (Draft) Act, Volume II: Evidence, HL Paper 169-II,
HC Paper 630-II, Ev. 44.
54 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898–899.
55 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898–899.
56 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898–899.
57 The Act will reduce the age of majority for this purpose from eighteen to sixteen but only for access to
non-identifying information.
58 Alton, ‘Children Cheated of an Identity’, The Sunday Times, January 13, 2008.
59 Discussion Paper of the South Australian Council on Reproductive Technology, Conception by Donation
(SACRT, 2000). See Roberts, “A Right to Know for Children by Donation – Any Assistance from Down
Under?” (2000) Family Law 371.
60 Joint Committee on the Human Tissue and Embryos (Draft) Act, Volume II: Evidence, HL Paper 169-II,
HC Paper 630-II, Ev. 14, para.11.
22
61 Feast and Brasse, “Embryological Secrecy Syndrome”, (2000) Family Law 897 at 898–899
62 UN Doc. CRC/C/5 General guidelines regarding the form and content of initial reports to be submitted
by States Parties under art.44, para.1(a) of the Convention. See generally, Kilkelly, “The Reform of
Adoption Law in Ireland: Ensuring Compliance with International Obligations” (2004) 1 IJFL 10.
63 (1979) 2 EHRR 330.
64 [2002] 2 F.L.R. 962.
65 [2002] 2 F.L.R. 962, para.48.
66 This trend can be observed in the courts’ willingness to order blood testing in order to establish paternity:
Re H and A (Paternity: Blood Tests). Such developments are replicated in France, Norway and in the
jurisprudence of the European Court of Human Rights. Cf. Bainham, ‘Arguments About Parentage’, 68
CLJ 322–328.
67 Shofman v Russia [2006] 1 F.L.R. 680, Mizzi v Malta [2006] 1 F.L.R. 1048, Paulik v Slovakia [2008] 1
F.L.R. 1090 and Tavli v Turkey [2008] 1 F.L.R. 1136. Cf. Bainham, ‘‘‘Truth will Out’: Paternity in
Europe’’ [2008] C.L.J. 278. Whilst Bainham believes promotion of biological truth to be more robust at
the European level, he cautions that “[m]ore generally, the position taken by the ECtHR falls well short of
the aspiration in Article 7 of the United Nations Convention on the Rights of the Child that the child should
have from birth ‘the right to know and be cared for by his or her parents’.’’ The ECtHR in Mikulic v
Croatia [2002] F.C.R. 577 acknowledged that the child had a right to know her biological parentage, as an
aspect of her right to private life under Article 8, but the right concerned is clearly a qualified, not absolute,
one. In this current cluster of paternity cases, the Court pays lip service to the interests of the ‘‘children’’
concerned but, perhaps unsurprisingly, concentrates on the rights of the adult applicants. There is no
obvious appreciation in these cases that there might be ECHR rights at stake for children themselves. Could
it be that the child’s own rights to respect for private and family life impose a positive obligation on the
state to pursue the truth of filiation?’
68 Deech, quoted in Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
69 [2003] 1 F.L.R. 1091.
70 Callus, “First ‘Designer Babies’, Now À La Carte Parents”, 38 Family Law 147.
71 Gaskin v UK (1990) 12 EHRR 36; Mikulic v Croatia, unreported, February 7, 2002.
72 Kilkelly, “The Reform of Adoption Law in Ireland: Ensuring Compliance with International Obligations”
(2004) 1 IJFL 10 at 13.
73 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
74 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
75 Probert, “Families, Assisted Reproduction and the Law” [2004] Child and Family Law Quarterly 273,
p. 287.
76 Probert, “Families, Assisted Reproduction and the Law” [2004] Child and Family Law Quarterly 273,
p. 287.
77 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
78 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
79 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
80 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
81 Alton, “Children Cheated of an Identity”, The Sunday Times, January 13, 2008.
