State says court cannot rule when life begins

The State has told the High Court that the constitutional protection given to the unborn does not apply to three embryos frozen in a fertility clinic in Dublin. The court could not and should not decide "the critical issue" of when life begins, the State has urged.

Donal O'Donnell SC yesterday said Article 40.3.3 of the Constitution, requiring the State to vindicate the right to life of the unborn with "due regard" to the right to life of the mother, did not exist for "pre-fertilised embryos not in the reproductive system".

He was making closing submissions on behalf of the Attorney General in a landmark legal action over the fate of three embryos in storage in the SIMS fertility clinic in Rathgar, Dublin.

A 41-year old mother of two is seeking an order preventing the destruction of the embryos. She wishes to have them returned to her and implanted with a view to becoming pregnant. The embryos were created during fertility treatment undertaken by her and her now estranged husband, as a result of which one of their two children was born. The second child was born naturally.

The woman's 44-year-old husband has told the court he wants no more children with his wife and is opposed to the embryos being returned to her.

Evidence over six days from experts, centering primarily on when life begins, has already been heard. Closing legal submissions began yesterday and will conclude today, after which Mr Justice Brian McGovern will reserve judgment.

Mr O'Donnell said the State did not agree with the woman's claim that embryos which existed independently of and were not present in the female body were entitled to protection under Article 40.3.3. Such an approach was "fundamentally flawed", he said.

Article 40.3.3 said the State "acknowledges the right to life of the unborn, with due regard to the equal right to life of the mother" but did not use the word embryo or state when life began.

The use of the term "unborn" was associated with the foetus in the mother's womb, he said.

If the court found the embryo was entitled to such protection, then it had the right to be born, and must have the right to be implanted. If the court found that was the case and the mother objected to the embryos being implanted, it was difficult to see how her objection could overrule the embryo's right to life unless the right to life of the mother was in jeopardy.

This case was "undoubtedly a difficult situation that traversed into personal issues".

The critical issue of when individual life began had eluded resolution by some of the finest minds and "cannot and should not be resolved by this court", Mr O'Donnell urged.

If the court was to accept that life began at the moment of fertilisation, this would mean that certain forms of contraception in use in the state since 1979, such as the morning-after pill, would then be "illegal and unconstitutional".

John Rogers SC, for the husband, agreed with Mr O'Donnell's submission. This case represented the first time that the "depth and the extent of Article 40.3.3 was being decided" but that Article did not arise until we could identify when a person became a specific individual human being. Evidence had been given that that did not occur until after the embryo was implanted.

Mr Rogers said his client was being forced into doing something he did not want to do. There was "an absolute right not to procreate" and no person should be forced to do so.

Earlier, concluding the evidence in the case, Swiss embryologist Prof Gunther Rager, cross-examined by Mr Rogers, said that what could be defined as pregnancy began before implantation of the embryo in the uterus.