Court again calls for law on assisted reproduction


ANALYSIS:The Supreme Court ruling states an embryo created by IVF is not an “unborn” but it leaves open what its precise status is.

THE SUPREME Court has brought clarity to one highly controversial area of the law surrounding assisted human reproduction. It has decided that a frozen embryo is not an “unborn” person as protected by Article 40.3.3 of the Constitution.

But many other aspects of this area of law remain unclear, and the court has, once again, appealed to the Oireachtas to legislate.

This is the second time in a week that the Supreme Court has had to decide on the implications of developments in modern reproductive technology. Last week it decided that the sperm donor father of a child born into a relationship between two lesbians had a right of access to his child, and the child had the right to contact with him.

These cases are unlikely to be the last, pending clarification of the law. We have not yet had, for example, a case testing the rights of a surrogate mother in relation to a child she bore for another couple, but such cases have arisen in other jurisdictions, and it would be naive to imagine they may not arise.

Nor have we seen the law tested in relation to the adoption, via implantation, of frozen embryos by a couple who did not create them, where the biological parents were married and were therefore a family protected by the Constitution, whose offspring are not normally adoptable.

In deciding that an embryo created by IVF is not an “unborn”, the Supreme Court leaves open what its precise status is. In a number of the five judgments the court stressed the need to respect the dignity of the human embryo and the urgency of legislation in this area.

However, in their unanimous judgments, the five judges were clear that it was not for them to decide on when human life begins. Mrs Justice Denham put it trenchantly.

“This case is not about the wonder and mystery of human life,” she said. “This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland.

“The question raised is whether the term ‘unborn’ in the Constitution includes the three frozen embryos in issue in this case . . . This is not an arena for attempting to define ‘life’, ‘the beginning of life’, ‘the timing of ensoulment’, ‘potential life’, ‘the unique human life’ or any other imponderable relating to the concept of life.”

In her analysis of the constitutional wording, she pointed out that the “right to life of the unborn” was inextricably linked to the “equal right to life of the mother”, thereby recognising the inextricable link between an unborn child and the mother bearing it.

“The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother,” she said, a view shared by the other judges.

Article 40.3.3 was designed specifically to deal with the prospect of abortion, they found.

She also commented that the law on marital privacy as developed by the Supreme Court upheld the right of a couple as to the make-up of their family unit. If the frozen embryos were an “unborn” under Article 40.3.3, the State would have to intervene to facilitate their implantation in this case, irrespective of the parents’ wishes, and it would give the State a duty to protect all embryos in the State in all the clinics, hospitals etc, regardless of the parents’ wishes. This ruling has implications far beyond the area of assisted human reproduction, extending into areas such as stem-cell research. Mr Justice Hardiman drew attention to the need for regulation in this area.

The Chief Justice, Mr Justice Murray, said the choice as to how life before birth can be best protected and the point at which such protection should commence is a policy choice for the Oireachtas. The court also addressed the specific issue of whether there was an agreement, explicit or implied, between the couple about the implantation of the embryos, finding there was not. Had there been, the husband would have been entitled to withdraw his consent, it said.

One of the striking facts in this case was that the documents signed between the couple and the SIMS clinic did not envisage either the death of one of the couple or the breakdown of their marriage, and merely addressed the issue of consent to the various medical procedures involved, and the freezing of the embryos.

There was no agreement between the couple, or between them and the clinic, as to what would happen to the embryos frozen following the implantation of the first three, which resulted in the birth of a daughter. The couple already had a son born without IVF.

The nature of such agreements is another matter that should be addressed in legislation regulating assisted human reproduction.

Mrs Justice Denham pointed out that if the embryos were implanted, against the wishes of the husband, he would be the father of any subsequent children, with constitutional rights and duties.

However, she pointed out that there was a right to procreate, along with a right not to procreate, and she left open the possibility of ordering the implantation of frozen embryos in other circumstances, where a party had no children and had no other opportunity to have a child. This would be a relevant factor for consideration in balancing the conflicting rights that would arise.

The decision in this case, where the estranged husband has been permitted to close the door to the implantation of these embryos, does not decide the fate of all embryos where it becomes a matter of dispute. All of these issues, ranging from the regulation of reproductive technology and the rights and obligations of all the actors in the creation of human tissue and ultimately in bringing a child into the world on the one hand, to the use of human genetic material in science on the other, exist in a legislative vacuum at the moment.

Not for the first time, the Supreme Court has appealed to the legislature to fill that vacuum.

Carol Coulter is Legal Affairs Editor

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