ABSTRACT
Introduction Over the last three decades, the assemblage of techniques associated with In Vitro Fertilization (IVF ) has been re-designated from the novel and controversial status of “New Reproductive Technologies” or “Artificial Reproductive Technologies” to legitimate and routine medical practice as “Assisted Reproductive Technologies” (ARTs). This process of normalization involves a confluence of factors, including the medicalization of infertility, the expansion of therapeutic rationales in line with expanding technological capacities and, not least, the expansion of local and global markets providing private fertility services. At the same time, the normalization of ARTs is culturally bound by the institutional contexts of different jurisdictions, as the various chapters in this volume testify. In Ireland, for example, the residual power of the Catholic Church, despite its diminishing institutional authority, has operated as a moral veto against the opening up of a policy debate on the legitimacy of ARTs in the formation of families and broader regulatory issues. The consequence of this has been many years of state passivity with respect to the changing social context surrounding reproductive and sexual politics and family formation, which have altered the normative context in which ARTs have taken hold. There is always a residual novelty in the way that technologies associated with ARTs can disrupt the normative frameworks that render certain practices legitimate, as recent cases in the Irish courts demonstrate. The medicalization of infertility has been a key boundary definer, but this can only go so far in delimiting the radicalizing potential of ARTs, since infertility is not exclusively a biological category and ARTs are not in the proper sense treatments for infertility but rather alternative means of having a child who may or may not be linked genetically to a parent. While, in Ireland, IVF was first recognized as a legitimate therapeutic practice under Medical Council guidelines in 1989 (Medical Council 1989; McDonnell and Allison 2006), ARTs have until recently operated in a legal vacuum, due to what I will describe as the veto of moral politics – a political impasse associated with the residual power of the Irish Catholic Church institutionalized as national moral norms. Indeed, given the legacy of biopolitics in Ireland, which was shaped in no small way by the moral monopoly of the Catholic Church, one
could well have expected the State to have moved toward a restrictive regulatory regime similar to that of Italy in 2004 (Perrota, this volume). Instead, ARTs were left to the self-regulatory domain of the medical profession, which shifted from restrictive codes of practice banning donor gametes and the freezing of embryos in 1989 and limiting IVF to married couples in 1994 to more liberalized codes in subsequent ethical guidelines (Medical Council 2004; 2009). It is over ten years since the government-appointed Commission on Assisted Human Reproduction published its report (2005) recommending a statutory framework for the regulation of ARTs. However, it is only recently that legislative action has been taken with the introduction of the Children and Relationships Act 2015.1 Part of this Act deals in a partial way with ARTs and, for the first time, legally regulates the relationship between children conceived using donor gametes or donor embryos and their parents. The development of a private market in infertility treatments and the lacunae opened up by the diminishing power of the Catholic Church, particularly with respect to healthcare and medical ethics (McDonnell and Allison 2006), coupled with the exceedingly slow pace of the State’s response to the need for statutory regulation facilitated the normalization of ARTs as a treatment for infertility. An important caveat with respect to this normalization in Ireland is that it has occurred in the context of infertility therapeutics and medical ethics, while the imperative of political decision-making concerns how ARTs contribute to the creation of families. Medical ethics, however, are a wholly inadequate substitute for policy-making given that ART practices are subject to competing claims that challenge the presuppositions of existing laws governing rights and obligations relating to family formation. Given that legal innovation is a key aspect of the network of relations that serve to legitimize and, hence, normalize controversial and novel technologies, this chapter will assess how the veto of moral politics in relation to the traditional institution of the family and the status of the embryo created political inertia with respect to the statutory regulation of ARTs in Ireland for over three decades.
