Embryo case told of IVF, contraception fears

A legal decision that human life begaat fertilisation would have "very serious" implications for the practice of in-vitro fertilisation (IVF) treatment here and could affect the number of children born through IVF births, the High Court heard yesterday.

Such a finding could also have consequences for the use of emergency contraception - known as the morning-after pill - and various methods of contraception.

The absence of clarity about when human life begins and the absence of legislation governing IVF treatment means fertility specialists are uncertain whether or not the constitutional protection extended to the "unborn" in 1983 also applies to embryos, according to Dr Mary Wingfield. There is also uncertainty about whether clinics which store frozen embryos are permitted to allow those embryos to die.

Dr Wingfield said that while there were no full statistics on IVF available here, it was estimated that between 700-1,000 babies were born in Ireland each year as a result of IVF. Whether those children would be born in the event of a finding that life began at fertilisation would depend on what individual clinics decided to do.

A consultant gynaecologist, fertility specialist and member of the Commission on Assisted Human Reproduction, Dr Wingfield said she could not herself say when human life began or when an embryo became a life.

Her view was that legal protection should be given to an embryo at the time of implantation in the uterus. Before then, it could not survive, she said. Pre-implantation embryos were significant potential human beings which deserved respect but she did not regard them as entities worthy of the same protection as a human being. Respect for such embryos had to be balanced with the needs of infertile couples and the possible benefits for humankind of research on them.

While not believing embryos should be produced purely for research, she said, if there were unwanted embryos produced as a result of IVF, there could be benefits for conditions such as Alzheimer's disease in using them for research.

Her views in that regard were shared by the Commission on Assisted Human Reproduction, the European Society of Human Reproduction and Embryology and others but not the Medical Council here, she said.

She was giving evidence - as a witness called by the attorney general - in the continuing action by a 41-year-old mother of two aimed at having returned to her three embryos stored in the Sims fertility clinic, Rathgar, Dublin. The action is opposed by the woman's estranged husband.

The embryos were produced when the couple underwent IVF treatment at the clinic in 2002, which resulted in the birth of their second child. Three embryos not used in the treatment were frozen.

Mr Justice Brian McGovern has found that documents signed by the husband did not amount to a consent to have the embryos implanted in his wife's uterus and is now hearing evidence to decide public law issues relating to whether an embryo constitutes human life and attracts constitutional protection.

Mr Justice McGovern yesterday said it was possible, if he ruled that an embryo was an unborn at fertilisation, that this would have implications for certain contraceptive practices. He was speaking after hearing evidence from Dr Wingfield about the use of emergency contraception and contraceptive methods such as the IUD which affect implantation of an embryo in the uterus.

Gerard Hogan SC, for the woman, said any such consequences should have no bearing on the court's decision as to when human life begins.

Replying to John Rogers SC, Dr Wingfield agreed the absence of any legislation here governing IVF treatment created problems for those involved in such treatment, including what should happen to extra embryos created during IVF and to frozen embryos.

While the clinic of which she was a director, the Merrion Fertility Clinic in Dublin, asked patients to sign consents to embryos not being transferred to the woman's uterus in the event of the death of one of the couple or their separation, the clinic remained unclear what it should do with those embryos.

As matters stood, the Merrion clinic kept its embryos frozen. She was unaware if other clinics allowed them to be thawed out or disposed of. "Everybody wants the situation to be clarified and would like to know what we can do," she said. The practice of IVF in Britain, the US and Australia was less restricted than in Germany and Italy and she would prefer if Ireland followed the British regime.

There they had decided the time to accord legal protection to an embryo was when it was 14 days old. Before then, it was permitted to carry out research.

The regime in Italy provided that a maximum of three embryos could be produced and, if they were produced, all must be implanted, leading to a significantly higher number of triplet births which carried significant health risks.

In Britain, three embryos could only be transferred in extreme circumstances and the growing trend in Ireland now was to implant a maximum of two embryos, a number which she believed would be reduced to one in the coming years. In Scandinavia, it was one.

She agreed the Medical Council guidelines say that a fertilised ovum must not be destroyed and must be used for implantation. She agreed there was a "very fine line" relating to the selection for freezing or implantation of embryos created as a result of IVF. If it was felt an embryo could survive, was not abnormal and likely to implant, it would be implanted or frozen.

If there was a legal finding that all embryos were human, that could mean all embryos created during IVF would have to be transferred to the uterus, she said.

She would have an ethical difficulty about that and would recommend that persons seeking IVF go to another jurisdiction.

The case continues today.