Appeal next month against ruling not to allow implantation of embryos

THE SUPREME Court will early next month hear an appeal by a mother of two aimed at securing orders to have three embryos implanted in her, against her estranged husband’s wishes, with a view to becoming pregnant.

The appeal will be heard by a five-judge court on February 2nd next and has been listed for two days.

The case was mentioned briefly before Ms Justice Susan Denham yesterday who was told the appeal was ready to proceed.

The judge was also told that the clinic where the embryos are being stored would not take an active part in the appeal but would abide by any order made by the court.

The embryos were created after IVF treatment undertaken by the 43-year-old woman and her husband and are in frozen storage in the SIMS fertility clinic in Rathgar, Dublin.

In his November 2006 judgment dismissing the woman’s case, Mr Justice Brian McGovern ruled the embryos are not unborn within the meaning of Article 40.3.3 of the Constitution – the “right to life” amendment inserted after a referendum in 1983.

Therefore, Mr Justice McGovern said, the embryos did not attract the constitutional protection for the unborn which was set out in that amendment.

In a statement issued through her solicitor Alan Daveron shortly after the judgment was given, the woman said she was determined to appeal so the issue may finally be determined in the interests of her family and in the wider public interest.

The woman had sought to become pregnant with the embryos and claimed they were safeguarded from destruction by the constitutional amendment protecting the unborn.

In rejecting that argument, Mr Justice McGovern said he was satisfied the public who voted for protection of the unborn in the Constitution were concerned with the foetus or child in the womb and not with embryos existing outside of the womb.

It was not the function of the Irish courts to decide when human life begs, he added.

It was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.

The judge said expert witnesses in the case had offered startlingly different views about when human life began and the courts had no business intervening in relation to the future of the frozen embryos.

The couple, who are separated, have two children.

They had gone together to a Dublin clinic for IVF treatment in 2001. One of their children was born after the procedure and three embryos remain in storage.

The woman sought to have them implanted in her despite the objections of her husband, who is in another relationship.

Her husband had said in evidence that he wanted no more children with his wife and was opposed to the embryos being returned to her.