Yesterday's court ruling on the status of the embryo in Irish constitutional law addresses a very fundamental question, writes Gerry Whyte
Article 40.3.3 of the Constitution, agreed by referendum in 1983, acknowledged the right to life of the unborn and obliged the State to respect and, as far as practicable, defend and vindicate that right, with due regard to the equal right to life of the mother.
Significantly, however, the term unborn was not defined for the purpose of Article 40.3.3 and the principal task confronting Mr Justice Brian McGovern in the High Court yesterday was to determine what that word meant.
The facts of the case, in a nutshell, were that an estranged married couple were now in disagreement as to the fate of three frozen embryos they had created through IVF. The wife wished to have them placed in her uterus in the hope that this would result in a pregnancy, while the husband was opposed to this.
At an earlier hearing, the judge had ruled that there was no agreement between the couple as to what was to happen to the embryos in the present circumstances and the central issue now before the court was whether the embryos were protected by Article 40.3.3.
Before deciding this question, Mr Justice McGovern pointed out that it was not possible for the court to state when human life began as the answer to that depended on issues other than science and medicine and it was not the function of the court to choose between conflicting religious and moral beliefs. Rather, what he had to decide was whether the three frozen embryos constituted unborn for the purpose of Article 40.3.3. In addressing this question, Mr Justice McGovern had regard to the legislative history of Article 40.3.3 and, in particular, to the judicial understanding of the purpose of that clause as expressed in a number of cases.
While both Mr Justice Anthony Hederman and the late Chief Justice, Mr Justice Liam Hamilton, had expressed views that seemed to indicate that Article 40.3.3 applied from conception, both judges were talking about the unborn in the context of a pregnancy and accordingly could not be regarded as addressing the status of the embryo outside the womb where no pregnancy as yet existed.
Moreover other judges, such as the former Chief Justice, Ronan Keane, and the late Mr Justice Niall McCarthy, had identified the purpose of Article 40.3.3 as being to prevent the legalisation of abortion.
According to Mr Justice McGovern, if this premise was correct, ie if Article 40.3.3 was concerned only with abortion, then "it equates 'unborn' with an embryo which has implanted in the womb, or a foetus". He went on: "If Article 40.3.3 and the Offences Against the Person Act 1861 are concerned with the termination of pregnancy this does not mean that they are concerned with embryos in vitro. There has been no evidence adduced to establish that it was ever in the mind of the people voting on the Eighth Amendment to the Constitution that 'unborn' meant anything other than a foetus or child within the womb.
"To infer that it was in the mind of the people that 'unborn' included embryos outside the womb or embryos in vitro would be to completely ignore the circumstances in which the amendment giving rise to Article 40.3.3 arose. . ."
As one who argued for the legal protection of the embryo in the context of the Report of the Commission on Assisted Human Reproduction, I am concerned as to the implications of this decision.
Those implications are, immediately, that the wife in this case cannot insist on the transfer of the frozen embryos to her uterus in the hope of bringing about a pregnancy. However, the decision may also mean that domestic Irish law does not prohibit various medical and scientific procedures that entail the deliberate destruction of the embryo, including embryonic stem cell research.
If there is an appeal to the Supreme Court, it is likely that central to it will be whether Mr Justice McGovern was correct in linking Article 40.3.3 exclusively to the question of abortion or whether it can be argued that this provision had a wider ambit of protecting the right to life of the unborn, including embryos, in other contexts additional to abortion.
That Article 40.3.3 was intended to apply to pre-implanted embryos appears to have been the intention of the Seanad in giving its approval to the 1983 amendment for on May 25th, 1983, a proposal that unborn be defined as excluding "the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus" was defeated by 18 votes to 10.
Whether or not an appeal is taken, and whatever the outcome of any appeal if taken, Irish citizens will again have to confront the fundamental question of determining the scope of the right to life.
Gerry Whyte is co-editor of Kelly, The Irish Constitution. A member of the Commission on Assisted Human Reproduction, he dissented from the majority report in relation to recommendations on the status of the embryo.