Supreme Court begins hearing frozen embryos case

A man who separated from his wife after agreeing to her undergoing fertility treatment is prevented both by the Constitution and various documents signed by him from stopping her having the remaining embryos implanted in her womb with a view to becoming pregnant again, the Supreme Court was told today.

The State, because of the 1983 constitutional amendment requiring it to protect and indicate the right to life of the unborn, must facilitate the implantation of the remaining embryos, Gerard Hogan SC, for the woman, said.

Asked by Mr Justice Adrian Hardiman if the State is always required to facilitate implantation of viable embryos, counsel said he was not arguing women could be coerced into carrying embryos.

In this case, the woman could not be denied implantation as she wanted to provide “a home” for the embryos. Her attitude was a “highly relevant factor” in determining the extent of the State’s obligations towards these particular embryos.

Cousnel said the man had also signed documents expressly recognising he would be the legal father of any child resulting from the implantation of the embryos and it was “too late” for him to say he does not want any more children with his wife. The man had “crossed a Rubicon” after signing those documents.

Mr Hogan was opening the woman’s appeal before the five judge court, presided over by the Chief Justice, Mr Justice John Murray, against the High Court’s refusal to compel a Dublin fertility clinic to release the remaining embryos to her.

The embryos were created after IVF treatment undertaken by the now 43-year-old woman and her husband in early 2002 and are stored in the SIMS fertility clinic in Rathgar, Dublin.

The couple had one child before undertaking fertility treatment and their second child was born in October 2002 as a result of the treatment. Six viable embryos were created during the treatment, three were implanted in the woman and the remaining three are in frozen storage.

The couple experienced marital difficulties during the second pregnancy and separated in 2002. The woman subsequently decided she wanted to become pregnant again.

In her appeal, she claims she is entitled to do so based on the consents signed by her husband in 2002 relating to the fertility treatment and in light of Article 40.3.3 of the Constitution, which requires the state to protect and vindicate the right to life of the unborn. She argues the embryos are the “unborn” within the meaning of Article 40.3.3.

In the High Court in November 2006, Mr Justice Brian McGovern ruled against the woman on all grounds. He held embryos are not “unborn” within the meaning of Article 40.3.3 and said those who voted for protection of the unborn in the Constitution were concerned with the foetus or child in the womb, not with embryos existing outside of the womb.

It was not the function of the Irish courts to decide when human life begins and it was for the Oireachtas to decide what steps should be taken to establish the legal status of embryos ‘in vitro’, he added.

Today, Mr Hogan said he was contending the man, via a number of documents signed by him in early 2002, had given either express and/or implied and/or imputed consent to the remaing embryos being implanted. The man was also precluded from refusing his consent and that consent was no longer necessary as he had earlier agreed to fertilise the ova with his sperm, counsel further argued.

The “critical point” from the consent documents was that the man had expressly consented to the fact there would be surplus numbers of embryos which would be preserved, he said. The man had consented to taking responsibility for the embryos created and that raised the question of why would he do so unless it was intended they were going to be used at some future stage, counsel argued.

Counsel agreed the consents did not address what was to happen if a couple who agreed to fertility treatment later separated or if one or both died. Nor did the couple themselves address at that time what was to happen to the surplus embryos but the “critical fact” was they had both agreed to the surplus embryos being frozen.

He argued the documents included the man’s signed consent to his sperm being mixed with the woman’s eggs, to the course of treatment outlined for his wife and to his becoming the legal father “of any resulting child”. He added the man was not required to consent to the implanting of the embryos in the woman’s uterus and only her consent was required for that.

If the court rejected his arguments on these contract or private law points, counsel argued the embryos constitute the unborn within the meaning of Article 40.3.3 and the State is required to facilitate their implantation.

The right to life of the unborn must prevail over any contract arguments and the State’s obligation was independent of any contract. The State could not willingly allow surplus embryos to be destroyed. The court also had to take into account that Medical Council guidelines of 2002 prohibited the deliberate destruction of any embryos.

Counsel said the fact there was no legislation governing fertility treatment was “a cause of difficulty” for all sides and it was “regrettable” that was the case. He further noted some countries do not allow surplus embryos to be created during fertility treatment.