The ongoing High Court case highlights the problem of what should be done with frozen embryos, writes Kitty Holland
Sinéad, (32), who has had two children through in-vitro fertilisation (IVF), would "never dare to hope" an embryo would result in a baby. "I suppose everyone is different. I know there are people who name their embryos and do see them as their 'babies', but we were through several attempts at IVF.
"I have seen embryos under a microscope and had many implanted. But then I've had two miscarriages. I have lost twins. I had an ectopic pregnancy. I suppose that until I saw a heartbeat I never dared to believe I had a potential baby." Living in the south of the country with her husband and their two daughters - aged seven years and seven months - she believes that to have become emotionally attached to their embryos would have left her and her husband too exposed.
When one considers that little more than one in three attempts at IVF - implanting a number of embryos created outside the womb in the hope that one will survive - is successful, it is clear that hopes raised are more likely to be disappointed.
Like perhaps most parents, particularly of IVF children, Sinéad has been closely following the R versus R case in the High Court which entered its second phase this week. In it Mrs R is seeking an order preventing the destruction of three embryos, frozen following a previous successful IVF treatment in a Dublin clinic. Her estranged husband, Mr R, does not want them implanted.
The High Court has already ruled that Mr R did not give his consent to have the frozen embryos implanted. The second phase concerns the question of the embryos' right to life.
"I don't think anyone can say either of the couple is right or wrong," says Sinéad. "I think everyone has feelings for both of them. I mean that poor woman must be going through hell, knowing that she could possibly have another baby, that her embryos are sitting there, that they are her only hope. And for him, well he doesn't want any more children with her. And it has all been taken out of their hands."
Four of the seven fertility clinics in this State offer the cryopreservation, or freezing, of embryos and each clinic is thought to have between 100 and 200 embryos stored.
The process of stimulating and harvesting a woman's eggs, to be used in creating embryos, is drawn-out, tiring and painful. If surplus embryos are created some couples will choose to have them frozen, to be used if the first attempt at IVF is unsuccessful, to avoid enduring the stimulation and harvesting process again. The embryos are stored in a liquid nitrogen "dewar" freezer until the patients choose to have them implanted.
In the absence of any legislation governing the fertility sector, the Medical Council provides the only national, governing guidance on how frozen embryos should be treated. And, according to its ethics committee, the only option for frozen embryos is that they be implanted, or kept frozen. Its 2004 ethical guidelines say: "Any fertilised ovum must be used for normal implantation and must not be deliberately destroyed."
In the view of Helen Browne, co-founder of the National Infertility Support and Information Groups (NISIG), it is this lack of choice as to what should happen to frozen embryos that may have contributed to the R versus R case.
The fact that the only route a clinic can offer patients is to have their frozen embryos implanted or kept in perpetuity could be seen to render any discussion about what should happen in various scenarios - such as the death of one spouse or a separation - less meaningful than it would be in other jurisdictions, she argues.
"There is no choice. Quite a percentage [ of couples] would like to be able to give them to science to help other people. Some would like to donate them to other couples for their treatment. And some would like to bring them home and bury them with their loved ones. They'd just like the choice."
IN BRITAIN AND the US, where the Human Fertilisation and Embryology Authority (HFEA) and the Food and Drug Administration (FDA) respectively oversee the legal operation of fertility clinics, choices must be discussed.
These bodies inspect all aspects of the clinics and among their demands is that potential parents be counselled at every step of the way. Possible scenarios, such as that R and R found themselves in, are discussed and planned for.
Gemma Wilkey, spokeswoman for Britain's HFEA, says frozen embryos are generally stored for five years, though that can be extended in special circumstances. "At the end of the five years the couple will be made aware that the storage period is coming to an end. They might decide to donate them for another couple's IVF treatment, for research or to be allowed to perish." Anyone undergoing IVF must be counselled and all possible scenarios discussed. Similarly, in the US, consent forms must be signed including instructions on what should happen to frozen embryos in the event of the death of either partner, divorce or the death of the couple.
SUCH SAFEGUARDS ARE not human-proof, however, as evidenced by the Natallie Evans case in Britain. She and her partner began the IVF journey together, and had embryos frozen when she underwent treatment for cancer. However, after he withdrew his consent the European Court of Human Rights ruled the embryos may not be used by her. Though such a scenario may be planned for, either party may withdraw their consent at any point up to implantation.
"It is all very difficult," says Wilkey, "and with the best will in the world and the best planning, these things can happen. With good counselling and planning hopefully the likelihood is reduced."
A solution, according to the Pro-Life Campaign, would be to not allow the freezing of embryos at all. Spokeswoman Dr Berry Kiely says that whether or not the human embryo is transferred into the mother, it has "a dignity and value by virtue of its humanity". Though many embryos, once thawed, are not deemed of sufficient quality to implant and a majority of those that are perish, she says "they should be given the chance of life".
Agreeing that legislation must be drawn up to regulate fertility treatment, she says we must look at more than the British and American examples. In Germany, for instance, the Embryo Protection Act says it is "prohibited to fertilise ova which are not intended for implantation within one cycle." Freezing embryos is banned there.
Such situations as R and R are now suffering cannot occur in Germany. But, says Browne, this may be a German answer to a German problem, as German couples are travelling to Britain and other countries to freeze embryos as a result.
All agree legislation and regulation are vital here. Although the Commission on Assisted Human Reproduction, established in 2000, reported last year, the Joint Oireachtas Committee on Health and Children is still deliberating on it. As couples continue to undergo IVF in a legislative vacuum, with some freezing embryos and, as Sinéad puts it, "hoping for the best", the committee has just invited yet more submissions on the commission's report.
It is a mess, agrees Sinéad, though she describes herself as "very, very lucky" IVF worked for her family. Asked about the moment of each of her daughter's births, she says: "Oh, just amazing, and you think you'll never get there. Of course there are days, when they're being difficult, I wonder 'Why did I do this?' But I still think every day about how wonderful they are, how special."
Sinéad's surname has not been used, to protect her identity. The Irish Fertility Society, which represents doctors and nurses working in the sector, did not wish to comment on the issues raised in this article. NISIG can be contacted at 1890-647444