The Minister for Health Stephen Donnelly and the Department of Health received legal advice that prompted four amendments to the Assisted Human Reproduction Bill 2022.
The implementation of this advice subsequently resulted in two references to ‘woman’ and two references to ‘man’ being deleted from the Bill as it was originally initiated.
The interpretation section of the initial draft of the Bill, contained the lines:
“gamete” means—
(a) a human sperm, which is formed in the body of and provided by a man, or
(b) a human egg, which is formed in the body of and provided by a woman;
However, in amendments brought forward by the Minister for Health at Committee Stage of the Bill, two amendments numbered 11 and 12 were subsequently adopted without a vote, the text of which is as follows:
“11. In page 14, line 23, to delete “man” and substitute “male”. —An tAire Sláinte.
“12. In page 14, line 24, to delete “woman” and substitute “female”. —An tAire Sláinte
Two further identical amendments were also brought forward to section 32 of the original draft.
This section deals with the use of embryo donation in the context of assisted human reproduction treatment.
The initial text was follows:
“An AHR treatment provider shall not provide AHR treatment to a person which, as part of the same procedure, involves—(a) the use of sperm from more than one man, (b) the use of eggs from more than one woman.”
However here again Minister Stephen Donnelly submitted the following consequential amendments, numbered 73 and 74:
“Section 32
73. In page 37, line 10, to delete “man” and substitute “male”. —An tAire Sláinte.
74. In page 37, line 11, to delete “woman” and substitute “female”. —An tAire Sláinte.
When the matter was raised in the Oireachtas Health Committee before the current Dáil recess, Minister Donnelly insisted that the amendments were merely part of a large grouping of amendments that were “purely technical and relate to edits and typographical corrections.”
However, when pressed on the matter by Social Democrat Deputy Roisin Shortall, a more expansive explanation for the amendments was provided moments later by Pamela Carter, Principal Officer in the Department of Health Bioethics Unit:
“I appreciate this is complex and that different terminology is used. We did seek legal advice and the advice of the Attorney General, also consulted other Departments and sought the views of clinical experts in this field who are familiar with the terminology. We ran it through their lens and this was the advice they gave us. We also consulted colleagues in the Department of children, which has other legislation using terminology in this field. Based on the legal advice and the advice of clinicians and people with experience with legislation, we reflected their views on the use of language.”
Based on that statement it is not unreasonable to surmise that there may indeed be a more complex rationale than simply tidying up the language.
In this respect it would be appropriate for the minister to publish any consultation or briefing notes relating to the Departments engagement with the ‘clinical experts’ referred to by Ms Carter.
Indeed, it might be a good thing to tell us who these clinical experts are. Are they members of the assisted human reproduction industry, for instance?There may of course be very sound and wholly appropriate justifications as to why ‘man’ and ‘woman’ were deleted in those particular sections only to be substituted with ‘male’ and ‘female.’
For example, it may have been done to ensure that the Bill could apply to persons under 18, particularly girls, who may wish to freeze their eggs in the event of undergoing medical treatment that may endanger their future fertility.
That being said; we do live in a cultural space where references to women and woman are literally being deleted from healthcare literature and wider legislation in an effort to be as inclusive and as ‘gender neutral’ as possible.
So, we have good cause to be sensitive given these precedents, and in that context it is not unreasonable to demand that further clarity be provided.
What we can say is that concerns about the Bills apparent lack of inclusivity was certainly to the forefront of Deputy Shortall’s contribution when she quizzed the Minister and Ms Carter on the “gendered nature” of the language in the Bill and indeed why there was any need for the word ‘mother’ to appear in the Bill at where it referred to ‘surrogate mother’:
Here is what she said:
“I am not sure to what extent the Minister or his officials have thought this through. It refers to a gamete formed in the body of a male and a gamete formed in the body of a female and so on. I wonder why we cannot use more straightforward language, such as “egg” and “sperm”. Moreover, a few groups have inquired as to whether the Department has carried out any research into whether it is more appropriate to refer to a “surrogate mother” or just to a “surrogate”. That is of concern to some groups. What thought has gone into that area of non-gendered language?”
Again, who are these groups and is there any research that supports a rush to eliminate the use of the word ‘mother’ in legislation of this kind?
At the very least the entire series of amendments and the Committee interactions are indirectly and often directly revealing with respect to what we might call the ideological tone of voice that these debates are so often carried on in.