Reproductive Rights Bill 2024

Why Mrs August-Phillips MLC?

Mrs August-Phillips was Department of Health and Social Care (”DHSC”) Member responsible for legislation from 2021-2025. This matter sat as a final priority on a programme filled with essentials at the beginning of this administration.

There was concern DHSC wouldn't get to it, so she offered to work on it alone as a private member, consult on it as a private member, and brief DHSC as it developed before it reached Tynwald's branches.

Central Registry's part...

The Chief Registrar identified that amendments would need to be made to the Civil Registration Act 1984.  He also identified that if changes were made to the specific definitions of ‘mother’ and ‘father’ and in respect of references to ‘husband’ and ‘wife’ in Part 9 of the CYPA (Fertilisation, Surrogacy etc.), to recognise that same sex couples may wish to have children using modern fertilisation and embryology methods, this would provide appropriate definitions for the anticipated changes to the 1984 CR Act.

DHSC's part...

Accordingly, the DHSC, which has responsibilities in respect of the 2001 CYP Act, was asked to facilitate the necessary amendments to that Act.

Neither the 2001 Act nor the 1984 CR Act include any provisions for amendments to be made using secondary legislation.

Part 9 of the 2001 Act is based on similar provisions in the 1990 UK Act.  This Act was significantly amended by the 2008 UK Act, which also included a number of additional provisions relating to parenthood in cases involving assisted reproduction, and both have since been further amended via secondary legislation.

In reviewing the UK legislation, it was identified that none of the changes since 1990 had been applied in the Isle of Man, and as a consequence Part 9 of the 2001 Act was now quite different, and out-of-date, when compared to UK legislation.

Keeping pace...

It was concluded the Isle of Man needs to align with the UK, by introducing:

·       new provisions relating to the meaning of ‘father’ and the donation of sperm and eggs; including other circumstances around ‘fatherhood’ involving same or different sex parents and assisted reproduction, via artificial insemination, embryonic transfer, egg donation etc.;

·         extended provisions dealing with parental rights on the death of a partner;

·         new meanings of marriage, civil partnership and the register of births;

·         and, new provisions relating to parental orders in respect of a child.

An option to amend the 2001 Act in respect of the pressing matters was considered, but it quickly became apparent making minor changes when more substantial changes were required was not ideal.

On the basis of the extent of the changes, and a general view that Part 9 does not fit particularly well in the 2001 Act, it is suggested that the revised and new provisions might all now be brought together into a standalone Human Fertilisation and Embryology Bill.

It was suggested that the restated and updated surrogacy arrangements contained in Part 9 of the 2001 Act would also sit more comfortably with the Human Fertilisation and Embryology legislation, rather than being left in the 2001 Act. The proposals were, therefore, drafted into a stand-alone Bill.

Working with stakeholders, and informed by experts...

Much of the policy work on this proposal was initially scoped out by officers working for the Attorney General’s Chambers in 2017, and has been broadened by Miss August-Phillips, working with stakeholders, including; Registries, DHSC, Public Health, Manx Care, and the Cabinet Office.

Versions of the Bill were scrutinised with expert input from Mrs Michele Maroney MBChB FRCOG: Consultant Obstetrician and Gynaecologist at Noble's Hospital, and Professor Richard Anderson from the Centre for Reproductive Health at the University of Edinburgh.

Resulting from this work, leave to introduce for the Bill was sought from Legislative Council on 8^th March 2022, and 4^th April 2023, respectively on the basis that policy is agreed with the DHSC ahead of drafting for the Bill, which would otherwise take years to appear in either Branch.

A public consultation was conducted on the Government Consultation Hub between 15 August 2023 and 29 September 2023. The outcome of the consultation shows overwhelming support for the Bill (137 R).

Should these rights be automatically granted to both same-sex parents?

There were 136 responses to this part of the question.

Do you think Manx law should be updated to recognise and accommodate the rights of same-sex parents?

There were 137 responses to this part of the question

Are you content with the prohibitions and offences in connection with embryos, germ cells, gametes, and genetic material within the Bill?

There were 114 responses to this part of the question.

The Bill

Part 1 - Introductory

This contains the short title and the commencement provisions, definition of terms which apply to the Bill, and it provides that a person who has a conscientious objection need not participate in any activity governed by Part 2.

Part 2 – Human Fertilisation and Embryology

Part 2 of the Bill updates and replaces the provisions in Part 9 of the Children and Young Persons Act 2001. It comprehensively regulates the creation, use, and storage of embryos and gametes, setting strict licensing requirements for fertility treatment and prohibiting certain activities outright, such as the placing of non-human embryos or gametes in a woman.

Importantly, it provides for conscientious objection, allowing individuals to opt-out of activities governed by this Part if they hold such objections.

The DHSC is given a pivotal role outlining its functions and responsibilities in regulating these activities. Clause 7 mandates the Department to maintain a code of practice for licensed activities, ensuring proper conduct.

Clauses 8 through 13 establish prohibitions and define key terms such as “permitted egg,” “permitted sperm,” and “permitted embryo.” They also create offences for contraventions, ensuring robust enforcement of these prohibitions.

Clause 14 deals with licensing for otherwise prohibited activities, while Clause 15 addresses regulations for parental orders involving mitochondrial donation. Clause 16 pertains to the regulations regarding the storage and examination of gametes or embryos.

Part 3 – Parenthood in Cases Involving Assisted Reproduction

Part 3 introduces significant updates to determine legal parenthood in cases involving assisted reproduction. This includes provisions for recognising the parenthood of a mother's female partner under certain conditions, ensuring parity with opposite-sex couples.

Clauses 17 through 38 elaborate on the conditions and processes for recognising parenthood, addressing both married and unmarried couples, same-sex couples, and situations involving deceased partners. These clauses ensure that all parties involved in assisted reproduction are accorded their rightful parental status, while also providing clear guidelines and safeguards.

Part 4 – Surrogacy Arrangements

Part 4 re-enacts and updates the provisions related to surrogacy. It defines key terms and establishes that surrogacy agreements are unenforceable under Manx law. Clauses 45 and 46 prohibit commercial activities related to surrogacy, creating criminal offences to uphold these prohibitions. Clause 47 restricts advertising related to surrogacy, with certain exceptions for non-profit organisations.

Clause 48 enables the Department to align Island regulations with UK legislation on surrogacy, ensuring that we stay current with developments in this area.

Part 5 – Closing Provisions

Finally, Part 5 includes Clauses 49 to 51, introducing consequential amendments, transitional provisions, and the power for the Department to make further regulations to fully implement the Act.