Frozen embryo has no legal status, court hears

An embryo created as a result of fertility treatment has no legal status here, is not entitled to Constitutional protection unless it is implanted in a woman’s womb and may be legally destroyed prior to any such implantation, lawyers for the State have told the Supreme Court.

Donal O’Donnell SC, for the Attorney General, said an embryo is not an “unborn” within the meaning of Article 40.3.3, the anti-abortion amendment to the Constitution and, because of this and the absence of any regulation of fertility treatment, has no status under Irish law.

This meant persons who undergo fertility treatment resulting in the production of embryos are entitled to decide what happens to them, he said.

In reply to the judges, counsel agreed there is nothing in Irish law to stop embryos being produced for commercial reasons and also agreed the destruction of fertilised embryos prior to implantation in a woman’s womb is permitted under law.

The fate of embryos was for the people and legislature to decide and he was not representing the legislature, Mr O’Donnell said. The State’s position was embryos are unregulated by law or the Constitution and there was no relevant public policy in relation to them. He was not saying they were “nothing” or they should not have status but that they have no such status.

It is open to the people to make a decision they wish to protect embryos but that issue was not decided in 1983, when the anti-abortion amendment was passed, and it remains to be decided, counsel added.

Mr Justice Adrian Hardiman remarked counsel’s comments represented “the clearest statement since 1983” of the State’s position concerning the ambit of Article 40.3.3. The judge also commented people may only vote on embryos if the legislature put proposals before them but the legislature had “maintained total silence”.

In reply to Mr Justice Hugh Geoghegan, Mr O’Donnell agreed regulations relating to fertility treatment could be enacted without a referendum. He was aware the 2005 Commission on Assisted Human Reproduction had recommended regulation but there was no such regulation.

Mr O’Donnell added the State also believed the court is entitled, if it considers an estranged couple had an agreement relating to what would happen to three embryos in frozen storage, to enforce that agreement.

Cousnel was making opening submissions on the third day of the appeal before the five-judge Supreme Court by a separated mother of two against the High Court’s refusal to order a Dublin clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The appeal hearing has been adjourned to resume later this month on a date yet to be fixed.

The embryos were created after fertility treatment undertaken by the now 43-year-old woman and her husband in early 2002 and are stored at the SIMS fertility clinic, Rathgar, Dublin. The couple had one child in 1997 conceived naturally and their second child was born in October 2002 as a result of the treatment. Three embryos were implanted in the woman and a remaining three are frozen. The couple separated later in 2002.

The woman claims entitlement to have the remaining embryos implanted because of (1) consents signed by her husband in 2002 relating to the fertility treatment and (2) the State’s obligation under Article 40.3.3 to protect and vindicate the right to life of the unborn. She contends an embryo is an “unborn” within the meaning of Article 40.3.3 on grounds human life begins from conception.

Earlier today, John Rogers SC, for the man, argued there was no agreement between the man and woman as to what was to happen to the remaining embryos and there was also no implied agreement allowing the woman use the embryos in the future. Even if there was any consent, the man was entitled to withdraw it, he submitted.

He also argued public policy should mandate that family arrangements such as was agreed here should not be enforced. The State was not entitled to intervene in a decision of a man and woman whether or not to procreate and the courts had made that clear in the Magee judgment concerning contraception rights. The man had the right to determine whether or not he would have children.

In this case, the woman’s evidence to the High Court was all she wanted from the treatment was for a child to be born and that had happened, counsel said. The circumstances now were very different, the couple had separated and, if the embryos were implanted and a child was born, the man would have no meaningful role in the parenting of that child.

Counsel argued the woman was seeking to oust the man’s family rights and right to decide if he wished to procreate. There must be a mutual decision to procreate and the State could not seek to intervene in the husband/wife relationship in that regard.

Counsel said Article 40.3.3 was directed only to the protection of a child “within the womb” and it was his case an “unborn” under Article 40.3.3. applies only to pregnancies which have reached the “primitive streak” stage when there is “an identifiable person”.

If the court did conclude the embryo was entitled to Constitutional protection because of Article 40.3.3, it should balance that right against the man’s right to avoid procreation, counsel added.

The court should also note fertility treatment was a “hit and miss” process involving a wastage rate of some 75 per cent before implantation and of 25 per cent after implantation. In this case, some 11 eggs were fertilised, three were implanted and three were frozen.