'Disturbing' failure to enact laws on fertility treatment criticised

COURT'S WARNING:THE SUPREME Court criticised as "disturbing" and "undesirable" the State's continuing failure to enact laws to regulate fertility treatment and warned of possible future legal actions as a result.

Mr Justice Nial Fennelly suggested the failure to legislate could result in future actions intended to ensure respect for embryos created in such treatment.

Mr Justice Adrian Hardiman warned, if the legislature does not address these issues, Ireland may become by default “an unregulated environment for practices which may prove controversial or, at least, to give rise to a need for regulation”.

Mr Justice Hugh Geoghegan said spare embryos, “being lives or at least potential lives”, should be treated with respect. The absence of laws indicating how that respect should be given was “undesirable and arguably contrary to the spirit of the Constitution”.

The judge acknowledged providing such regulation would not be an easy task as the moral and ethical problems involved were “legion”. It would not be appropriate for the courts to give guidance in that respect, he added.

In his judgment, Mr Justice Hardiman warned: “Science will not stand still waiting for us to update our laws.”

He noted scientific developments in embryology and the culturing of stem cells continue and it was recently suggested it may be possible to develop human sperm from such cells.

The fact the embryos in this case did not attract constitutional protection did not mean they should not be treated with respect as entities having the potential to become a life in being, the judge said. Several European countries had introduced laws based precisely on respect for such embryos, including a limit on the number of embryos which may be created.

He also noted, if respect for a fertilised embryo was carried to the point of equating it to a life in being, this would lead to the outlawing of the morning after pill method of contraception. The fact such difficulties are raised does not absolve the legislature from its obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”.

“There has been a marked reluctance on the part of the legislature actually to legislate on these issues; the court simply draws attention to this. That is all it can do. That is what McCarthy J [Mr Justice Niall McCarthy] did, apparently in vain, in the X case 18 years ago. But the court does so as seriously and as urgently as it can.”

Mr Justice Fennelly said it was disturbing that, four years after the Oireachtas received the report of the Commission on Assisted Human Reproduction, no legislative proposals had even been formulated and it appeared the State has no present intention to propose any legislation.

Arguably, there may be a constitutional obligation on the State to give concrete form to the respect to which a frozen embryo is entitled, he said. If there is no action by the legislature, it “may be open to the courts in a future case to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution”.