Court rules woman cannot join appeal on embryos

THE CHIEF Justice has told a Dublin woman that he is rejecting her claim to be legally entitled to make submissions in an appeal to determine the fate of three frozen embryos in the Supreme Court.

She claimed the Attorney General had during the appeal “completely misrepresented” the intentions of herself and 850,000 others who voted in favour of the anti-abortion amendment in 1983.

The Attorney General’s argument that an embryo created as a result of IVF treatment is not an “unborn” within the meaning of the 1983 amendment (Article 40.3.3) and attracts no constitutional protection did not reflect her intention “to protect human life” when she voted in 1983, Esme Caulfield, of Brookwood Park, Artane, said.

Ms Caulfield, who had a number of supporters in and outside court, asked the judges to join her to the appeal as an amicus curiae (assistant to the court on legal issues) so as to make those arguments.

Mr Justice John Murray told Ms Caulfield she did not meet the criteria for an amicus curiae and could not be joined at this late stage.

When Ms Caulfield persisted with questions as to how she could raise her concerns, Mr Justice Murray, warning her she was in danger of being in contempt of court, asked her to sit down.

The appeal, which opened earlier this month and resumed yesterday, then proceeded and concluded later with the five-judge court reserving judgment.

A separated mother of two brought the appeal against the High Court’s refusal to order a Dublin clinic to release the three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The embryos were created after fertility treatment undertaken by the woman, now aged 43, and her husband in early 2002 and are stored at the Sims fertility clinic, Rathgar, Dublin.

The couple had one child in 1997 who was conceived naturally. A second child was born in October 2002 as a result of the treatment. They separated later in 2002.

The woman claims entitlement to have the remaining three frozen embryos implanted because of (1) consents signed by her husband in 2002 relating to the fertility treatment and (2) the State’s obligation under Article 40.3.3 to protect and vindicate the right to life of the unborn. She contends an embryo is an “unborn” within Article 40.3.3.

At one stage during the hearing, the Chief Justice remarked “absolutely nothing” had been done by the Oireachtas Committee on Health and Children in relation to recommendations received by it in 2005 from the Commission on Assisted Human Reproduction concerning regulation of fertility treatment here.

Mr Justice Adrian Hardiman also later remarked that 14 years had passed since the Supreme Court had described as “a scandal” the State’s legislative inactivity arising from Article 40.3.3.

Gerard Hogan SC, for the woman, argued a pre-implantation embryo is unborn life entitled to the protection of Article 40.3.3 because the “full human genome” exists from fertilisation.