A case concerning whether frozen embryos constitute the "unborn" under the Constitution, and are therefore entitled to the right to life, will open in the High Court tomorrow, write Carol Coulter, Legal Affairs Correspondent, and Alison Healy.
This follows the court's decision that a woman whose eggs helped to create the embryos cannot have them implanted in her womb against the will of her husband, from whom she is now separated.
Four years ago the couple had IVF treatment resulting in the birth of one child. Three surplus embryos created during the treatment were frozen. Towards the end of the wife's pregnancy the marriage ran into difficulties, and the couple separated shortly after the birth of the child.
The woman had argued that the contracts they signed with the Simsfertility clinic in Ranelagh meant he was obliged to be the father of any resulting embryos. She said she wanted to give the frozen embryos the right to life, and that they had this right under the Constitution.
Mr Justice McGovern said he was deciding on the contractual matter first, and took evidence over four days, reserving judgment, which he delivered yesterday. He ruled that the husband in the case had not given his express or implied consent for the implantation for the remaining embryos.
The judge was critical of the consent forms signed by the couple, as they made no provision for any change in circumstances, such as the death of one of them, separation or divorce. He also said they were vague in certain important aspects.
Nonetheless, he said they could not be read as giving consent to the implantation of the frozen embryos, whose fate was not even discussed between the couple before their separation.
He will now consider the public law aspects of the case, in particular whether the embryos deserve constitutional protection and, if so, what this means if they are not implanted in the wife's womb.
Her counsel, Gerard Hogan SC, said yesterday there will be three major witnesses on his side in the next phase of the case. Their case will be that the frozen embryos do constitute the unborn under the Constitution.
Counsel for the estranged husband, John Rogers SC, said his side will call an expert witness to give evidence on the process of becoming life, which, he said, commences with the embedding of the embryos and three or four days later it gives rise to a pregnancy test. Counsel for the Attorney General, who is a notice party to the action, said the scientific issue as to when life begins is one issue he will not ask the court to decide. That, he said, is an ethical and moral issue which should not be entered into until absolutely necessary.
The Pro-Life Campaign said it was confident the right to life would be vindicated in this case. "Whether or not the human embryo is transferred into the mother, it has a dignity and value by virtue of its humanity," its spokeswoman, Dr Berry Kiely, said.
The Irish Fertility Society, which represents medical and administrative staff working in the area of infertility treatment, said it felt "very strongly that fertility treatment should only be carried out with the valid and informed consent of all parties involved".
The Minister for Justice, Michael McDowell, said he could not yet say if the fertility treatment area needed greater regulation to prevent such cases arising. "Let's see when the case is concluded whether there is a need for legislation and let's see whether this needs to be regulated rather than left to people's own private decisions," he said.