Embryos belong to mother, court told

Three embryos frozen during fertility treatment undertaken by a woman and her husband prior to their separation are "our children" whose "rightful place is back with their mother" to give them the right to life, the woman told the High Court yesterday.

The woman (41), a mother of two, said: "To understand how I feel, you have to go through IVF, it's how our daughter came into this world . . . when you see the results of IVF, it's a miracle.

"We're still legally married and they are our children and the rightful place for these three frozen embryos is back with their mother to give them the right to life," she said.

The embryos were also "the brothers and sisters" of her son and daughter, now aged eight and three years.

Earlier, becoming visibly upset, the woman said her husband had told her that he was having an affair when their second child, a daughter born as a result of IVF treatment, was four weeks old. This was in late November 2002. "It turned my life upside down," she said.

Her husband (44) would attend work-related social events to which spouses were not invited, she said. She had trusted him but he failed to return home after one such event in August 2002, when she was seven months pregnant, and thereafter he began to withdraw from her.

He had moved out for 11 days but came back again and stayed until December 26th, 2002, when he left a second time. Judicial separation proceedings were taken in August 2003.

Before her husband left on December 26th, she had asked him what would they do with the frozen embryos, the woman said. He had said: "We'll destroy them." She had told him they were "our children". Her husband had also told her he was over 40 and did not want any more children.

When she had again asked him in 2005 what would they do with the embryos, he had said to donate them and give the money to a children's charity. "I said, 'you want to sell our children'?"

The woman, who works with special needs children, was giving evidence in her continuing action for a court order to have the embryos implanted in her womb. The action is against her husband, two doctors and the Sims Clinic Ltd, with the Attorney General as a notice party for the purpose of addressing any constitutional issues that arise.

The court has heard the embryos are in storage at the Sims Clinic in Rathgar, Dublin and that the clinic has taken the view it cannot release them without the consent of both the man and woman but will abide by any order made by the court.

The woman said the husband had failed to pay storage fees for the embryos as agreed during judicial separation proceedings but she had later paid them after the clinic wrote to her.

Earlier yesterday, the woman said she met her husband in 1985 and they married in 1992. She had difficulties having children and underwent a range of procedures.

She gave birth to a son in 1997, and, after treatment at the Sims clinic, to a daughter in September 2002. Her second pregnancy resulted after three of her eggs, which were fertilised with her husband's sperm, were implanted in her uterus.

Three remaining embryos were frozen. Her husband was very supportive throughout her treatment and also wanted children, she said.

Earlier yesterday, Mr Justice Brian McGovern ruled that before embarking on any public law or constitutional issues, he would first of all give judgment on the issue of whether there was an agreement between the man and woman that the embryos would be returned to the woman's uterus.

The case continues today.