State argues embryos do not share rights of unborn

AN EMBRYO created as a result of fertility treatment has no legal status here, is not entitled to constitutional protection unless it is implanted in a woman’s womb, and may be legally destroyed prior to any such implantation, lawyers for the State have told the Supreme Court.

Donal O’Donnell SC, for the Attorney General, said an embryo is not an “unborn” within the meaning of Article 40.3.3 of the Constitution. Because of this and the absence of any regulation of fertility treatment, an embryo has no status under Irish law.

This means persons who undergo fertility treatment resulting in the production of embryos are entitled to decide what happens to them, he said.

Counsel agreed there is nothing in Irish law to stop embryos being produced commercially and agreed the destruction of fertilised embryos prior to implantation in a woman’s womb is legal.

The fate of embryos was for the people and legislature to decide and he was not representing the legislature, Mr O’Donnell said.

Mr Justice Adrian Hardiman said counsel’s comments represented “the clearest statement since 1983” of the State’s position concerning the ambit of Article 40.3.3. He said legislature had “maintained total silence” on embryos.

Mr O’Donnell agreed regulations relating to fertility treatment could be enacted without a referendum. He was aware the 2005 Commission on Assisted Human Reproduction had recommended regulation, but there was none.

Mr O’Donnell added the State also believed the court is entitled, if it considers an estranged couple had an agreement relating to what would happen to embryos in frozen storage, to enforce that agreement.

Counsel was making opening submissions on the third day of the appeal before the five-judge Supreme Court by a separated mother of two against the High Court’s refusal to order a Dublin clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The appeal hearing has been adjourned to resume later this month on a date yet to be fixed.

The woman claims entitlement to have the embryos implanted because of consents signed by her husband in 2002 and 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 the meaning of Article 40.3.3.

John Rogers SC, for the man, argued there was no agreement between the man and woman as to what was to happen to the embryos. Even if there was any consent, the man was entitled to withdraw it, he submitted.