Sunday Tribune (Ireland), June 01, 2008
Irish legislators fear Catholic sex lobby
By Ivana Bacik
Ireland has a unique legal approach to reproductive health. This is the only country in the world with a constitutional provision giving equal rights to life to a pregnant woman and to the foetus she carries; the country with the most restrictive abortion law in Europe; the country that was the last in Europe to legalise contraception; the country that has no legislation governing In Vitro Fertilisation (IVF) or sperm banks; and one of only three countries out of the EU 27 without any specific legislation on embryonic stem cell research.
The reluctance to legislate on matters of reproductive health may be ascribed to the great power traditionally held by the Catholic church over matters of personal morality. For a long time the church led a vigorous campaign to prevent even the legalisation of contraception, based upon its teaching that sex should only take place within marriage, for the purpose of procreation.
After the foundation of the Irish Free State, under 1935 legislation, the sale, import and advertising of contraceptives was criminalised. However, the impetus for change in the law began in the 1960s, when a process of litigation and lobbying was initiated by family planning groups. These concerted campaigns paid off to a limited extent in 1979 with the introduction of the Health (Family Planning) Act, legalising contraceptives, including condoms, and making them available on prescription for 'adequate' medical reasons or for 'bona fide' family planning purposes (ie, for use by married couples only).
After a series of further gradually liberalising laws, the sale of condoms was finally deregulated in 1992, so that they may now be sold over the counter and in condom machines without any minimum age restriction. Although contraception can still be difficult to access in some areas, undoubtedly its use has become widely socially and politically acceptable.
Yet despite the lack of any evidence that the availability of condoms has brought about a moral breakdown in society, the Catholic church remains resolutely opposed to contraceptive use. Cardinal Desmond Connell, former Archbishop of Dublin, issued a statement in 1999 denouncing contraception and staunchly defending papal teaching on family planning. He also made the outrageous comment that a planned child is "more like a technological product," and condemned IVF and other forms of reproductive technology.
Perhaps due to the fear of offending Cardinal Connell and his colleagues, legislation has never been introduced to provide for assisted human reproduction services, including IVF. Despite a recommendation from the expert Commission on Assisted Human Reproduction in its 2005 report that legal regulation of such services is essential, nothing further has been done, with the two biggest political parties in particular refusing to take any lead on this issue.
In April, another body of experts published a report on a related area, again exposing the absence of legal regulation. The opinion produced by the Irish Council for Bioethics on ethical, scientific and legal issues concerning stem cell research generated the inevitable protests from the usual conservative groups and individuals. Yet all it does is to set out clearly the scientific consensus in favour of allowing embryonic stem cell research, and to conclude unanimously that such research should be permitted in Ireland, where it is conducted with the aim of alleviating human suffering, in a carefully regulated manner using supernumerary IVF embryos - that is, embryos created but unused in the IVF process.
The conclusions of the council make rational sense. At present, due to the absence of any legislation on assisted human reproduction, there is in fact no clear legal obstacle to the carrying out of embryonic stem cell research here. This also means that there are no enforceable principles governing the resolution of the sort of complex problems that have arisen elsewhere. In Britain, for example, such problems arose in the case of Diane Blood, a woman who sought permission from the national regulatory authority to use her dead husband's sperm to have a baby. She was ultimately allowed by the English courts to take the sperm to Belgium and subsequently gave birth to her dead husband's son.
Because we have no legislation, no regulatory authority, and no minimum legal standards governing private or public clinics, it is impossible to say what the outcome would have been if Diane Blood had gone through the Irish courts. A comparable case has already been heard here in the High Court concerning a dispute between a separated couple over 'frozen embryos'. The court ruled in 2006 that the embryos did not come within the constitutionally protected definition of 'unborn', implying that embryonic stem cell research may be carried out without any constitutional difficulty.
The unfortunate reality is that Irish legislators have been so intimidated by the conservative and Catholic Church lobby that they are reluctant to tackle any issue pertaining to reproduction. This means that, unless a campaign like that conducted on contraception by family planning groups succeeds, the courts will have to resolve any legal difficulties that arise - and in the meantime Ireland will remain a regulation-free zone for both IVF treatment and embryonic stem cell research.