Parentage DAH Reproduction
The Child and Family Relationships Act 2015 makes provision for parentage rules where a child is born through donor-assisted reproduction. A Donor Assisted Human Reproduction facility is a place where donor-assisted human reproduction procedures are carried out.
Donor Assisted Human Reproduction (DAHR) is a procedure carried out at the facility for the purpose of human reproduction where one or both gametes is provided by a donor. A donor is a person who has consented to the donation of a gamete or embryo.
An intending mother is a woman who requests a DAHR procedure for the purpose of becoming a mother of a child born through the procedure. An intending parent is a person who requests a DAHR facility to perform a DAHR procedure for the purpose of becoming a parent of a child born as a result. It includes the intending mother.
The birth mother is always a parent of the child. The child’s second parent is the birth mother’s spouse, civil partner or cohabiting partner if the birth mother and this person consent in advance to the birth mother undergoing a DAHR procedure. Both parents will have all the parental rights and responsibilities for the child.
A donor in a DAHR procedure, who is a donor of gametes by way of either sperm or ovum or of an embryo, is not a parent of the child and will not have parental responsibilities for the child.
The legislation sets out the procedure that applies to the consent of the donor of a gamete. The donor must be over 18 years old and give consent in writing. He or she must be informed that they will not be the parent of the child through donation. The consent must be witnessed by a person authorised to do so by the DAHR facility.
The donor’s consent must state that he or she knows that they will not be a parent to the child born as a result. The donor must consent to the inclusion of information about themself on a national donor-conceived person register. Consent must indicate that the donor understands that the donor-conceived child born through the procedure may seek to contact him or her.
The donor may make a donation to a specified intending mother or intending parent. Other than in this case, the donor may not set out grounds preventing any class or category of person from using the donation.
The DAHR facility must inform the donor that he will not be a parent of the child born through the procedure, that information will be held on the national donor-conceived person register and that the donor-conceived child may seek to contact him. It must inform the donor that his entitlement to information will be restricted to information on the number of children born through donation, sex and year of birth of each. He must also be informed of his or her right to revoke consent to the donation.
A donor who wishes to revoke consent to the use of his gametes must do so in writing to the DAHR facility at which his original declaration of consent was made. The revocation has no effect if the gametes have already been used in a procedure or an embryo has been created using the gametes before revocation has been received.
The intending mother who seeks to have a child through a DAHR procedure must be informed of the procedures and must be over 21. She must be informed of the procedures for revoking consent. She must make a declaration in writing, witnessed by a person authorised to do so by the facility in which the procedure is carried out.
The declaration must confirm that the mother has been informed that she may revoke her consent. She must confirm that she consents to the procedure, that she knows she will be a parent of the child born through the procedure and she knows that the donor will not be a parent of the child.
The intending mother must consent to her spouse, civil partner or cohabiting partner being a parent to the child born through the procedure. She must consent that if a child is born as a result of the procedure, information in respect of the child will be recorded in the national donor-conceived person register and that her personal details will also be recorded. She must indicate that she understands that the child will have a right of access to information provided in the national donor-conceived register, as well as a right to seek to contact the donor.
The intending mother may revoke her consent in writing to the facility where she gave consent. It has no effect if notice is received after the procedure leading to the implantation of the embryo in her womb.
Consent procedures apply to the spouse, civil partner or cohabitant of the intending birthmother. The spouse, civil partner or cohabitant must be over 21 years. He or she must give consent in writing, witnessed by a person authorised to do so by the facility, stating that he or she is the spouse, partner or cohabiting partner of the intending mother; that he or she has been informed that he can revoke his consent; and that he or she consents to being a parent of a child born as a result of the procedure performed on the intending mother.
He or she must consent that they understand that they will be the parent of the child born through the procedure and that they know that the donor will not be the parent. They must consent to the recording of their own personal details as well as the child’s in the national donor-conceived person register. They must indicate that they understand that the child may seek to contact the donor when he or she reaches 18.
Procedures for revocation of consent of an intending spouse, partner, etc. are set out. This must be given in writing to the facility at which the declaration of consent is made. It can have no effect if it is received after the procedure leading to the implantation of the embryo in the womb.
The DAHR facility must inform the intending parents of the above information, including the facts that the parent will be able to request non-identifying information relating to the donor; that the parent is obliged to tell the clinic if the treatment results in the intending mother becoming pregnant or if she has a child as a result of the treatment; and that he or she may revoke consent.
Use of Embryos
A person who has undergone DAHR treatment and has remaining embryos after they have finished treatment will have the possibility to donate the embryo to another person or couple. The consent of each member of the couple is required, whether or not the person provided a gamete from which the embryo was formed.
He or she must indicate that they have been informed and understand that they will not be the parent of any child born as a result. They must make a declaration confirming consent to the donation of the embryo. If the embryo was formed using his or her gamete, he or she must also consent to the inclusion of their personal details in the national donor-conceived register and acknowledge that any child born as a result may access that information from the register and may seek to contact the donor.
The person may stipulate that the embryo is to be donated to a specific intending birth mother or to a specified couple. In these circumstances, it is possible only for the specified mother to use the embryo. It is not possible for a donor to prevent a specific class or category of person from using the embryo.
It is not permitted for a donor to receive payment for the donation of a gamete or an embryo. A donor’s consent to donation is invalid if paid for. It is possible for the donor to be refunded any reasonable expenses that may arise in making the donation. This includes travel costs and medical expenses, other than in the case of embryo donation, because the donors would in any case have incurred those medical expenses, legal and counselling costs.
If the embryo contains the person’s gametes, the facility must inform him or her that he or she will not be a parent of the child, and that their personal details must be recorded on the national donor-conceived person register. It must also inform them that the child may seek to access information and to contact them and that it is desirable that the person update their personal details for the purposes of the register. The donor is entitled to request information from the register on the number of persons born as a result of the donation and the sex and year of birth of each of them.
A person who has given consent to the donation of an embryo has the right to revoke consent. It must be made in writing to the relevant facility. Where the embryo is donated by a couple and either of them revokes his consent, then the embryo may not be used. Revocation is ineffective unless received before implantation of the embryo in the womb of the mother receiving the donation.
There is provision for retrospective recognition of parentage of certain donor-conceived children born before the commencement of the legislation. It applies to any donor-conceived child born in the State following a procedure carried out in a clinic or hospital in the State or in a facility outside the State that is authorised to do procedures under the law of the State in which the procedure is formed.
The second parent must be able to demonstrate that he knew at the time of the procedure that he or she intended to be a parent of the child. The donor must be unknown to the birth mother or intending parent. The provision does not apply if anyone other than the birth mother and if the other parent is male, that man, is recorded as a parent on the child’s birth certificate.
Declaration of Parentage
There is a procedure for obtaining a declaration of parentage in the District Court in respect of a donor-conceived child born before the commencement of the legislation. A birth mother or a second parent may apply to the Court for a declaration in respect of a donor-conceived child. If the child is over 18, he is to be on notice and party to the proceedings.
The Attorney General may be a party to the proceedings. The Court will have regard to the views of the child, taking into account his age and maturity.
The Court will make a declaration of parentage in relation to a donor-conceived child provided it is satisfied that it is in the best interests of the child to do so. It is binding on the parties to the proceedings and the State if the Attorney General is party.
Where the Court makes a declaration, the person declared has all the rights and duties of parentage. All other familial relationships are deduced accordingly. The declaration confirms that the donor of the gamete is not a legal parent of the child.
There is a procedure for the declaration of parentage of a donor-conceived child born before the commencement of the legislation in the Circuit Court. It can be made by the child, birth mother or persons seeking to be recognised as a second parent.
The Court may declare parentage where it is proved on the balance of probabilities that the person is the child’s second parent. The Court can decide not to make a declaration of parentage if it determines that it is in the best interests of the child not to do so.
The Court may take account of factors that may prevent persons from providing the relevant evidence, such as the death of the birth mother or second intended parents, a dispute between those parties, the incorrect recording of another person on the child’s birth cert, closure of the facility in which the procedure took place, or the facility’s inability to provide such evidence.
The declaration of parentage is to be binding on the parties to the proceedings and on the State if the Attorney General is a party to the proceedings. Where a Court makes a declaration of parentage, the person declared parent will have the rights and duties of parentage. All other familial relationships are deduced accordingly. The declaration must confirm that the donor of the gametes is not a legal parent.
Where a person is declared to be a parent of a child, the person has all the parental rights and duties in relation to the child from that date and the child’s other relationships are deduced accordingly. The declaration has the effect that the donor is not the parent of the child and will have no parental rights or duties in relation to the child.
Registration of Birth
The Child and Family Relationships Act 2015 amended the Civil Registration Act to enable the registration of a child born as a result of donor-assisted human reproduction. Amendments are made to take account of the definition of a father and parent relative to the child so born.
A ‘father,’ as defined, does not include a person who is a donor of a gamete used in the procedure. The ‘parent’ means the parents of the child as defined under the Act. The birth mother is always the parent and the child’s second parent is the spouse, civil partner or cohabiting partner of the mother, provided he gives the requisite consent.
Provision is made for the process of registration of the birth of a child born as a result of a donor-assisted human reproduction procedure. Parents may provide the Registrar with a statutory declaration that they are the parents and a certificate from the relevant clinic that states that the parents have provided the requisite consent under the Act.
Provision is made for re-registration of births on foot of Court order of a donor-conceived child. It allows parents of a child who was born as a result of a donor-assisted human reproduction procedure to re-register the child’s birth on foot of a Court order under the Act.
The relevant provisions allow a parent or child born as a result of a donor-assisted human reproduction to apply for a declaration of parentage. They may also do so under the Status of Children Act, which was also amended by the 2015 Act.
The Civil Registration Act was amended to take into account the fact that a second parent to be registered may be of the same sex as the mother.
The Passports Act 2008 was amended to allow the Minister to issue a passport to a child ordinarily resident outside the State without the consent of a guardian, where a Court or competent judicial or administrative authority of the state in which the child is resident has ordered that the passport be issued or where the consent requirements with regard to guardians in the law of the state in which the child is resident, have been fulfilled.