Woman loses bid to have embryos implanted

A mother of two has lost her legal action to have three embryos implanted in her against the wishes of her estranged husband.

The embryos were created after IVF treatment undertaken by the woman and her husband and will continue to be kept in frozen storage in a Dublin clinic for an as yet undefined period.

Mr Justice Brian McGovern yesterday found the embryos are not "unborn" within the meaning of Article 40.3.3 of the Constitution - the right to life amendment inserted after a 1983 referendum - and therefore do not have constitutional protection for the unborn as set out in that amendment.

The article states: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its law to respect, and as far as practicable, by its laws to defend and vindicate that right."

The judge said he was satisfied, when the people endorsed that amendment, their understanding of unborn was a foetus in the womb and did not extend to embryos outside the womb or embryos in vitro. The "clear purpose" of the amendment was to deal with the issue of abortion, he found.

The judge also declined to make a finding on when human life begins, ruling that such a finding was not necessary in order to interpret the meaning of unborn in Article 40.3.3.

"It is not for the courts to decide whether the word unborn should include embryos in vitro," he said. "That is a matter for the Oireachtas, or for the people, in the event that a constitutional amendment is put before them."

It was also up to the Oireachtas, not the courts, to decide what steps should be taken to establish the legal status of embryos in vitro, he added. The absence of IVF regulations meant they had a "precarious existence".

He adjourned the case for a week to allow lawyers for the woman, her husband, the State and the Sims fertility clinic, Rathgar, Dublin, to consider his 26-page judgment and address the issues arising, including who is to pay the substantial costs of the action.

Counsel for the clinic said it would continue to keep the embryos in frozen storage for the time being.

Outside court, Alan Daveron, solicitor for the woman, said she was "very disappointed". His side would consider the judgment and all their various options.

The three embryos were among a number created during fertility treatment undertaken by the woman and her husband at the Sims clinic, as a result of which one of their two children was born in late 2002. Their first child had been born naturally in 1997. The clinic had said it would not return the embryos to the woman without the consent of her husband, which he refused to give.

The case also considered the woman's claim that the embryos were entitled to the constitutional protection afforded to the unborn in Article 40.3.3.

In his reserved judgment yesterday, Mr Justice McGovern noted Article 40.3.3 did not set out a definition of either unborn in the English version of the Constitution or "beo gan breith" in the Irish version.

He also noted that the Constitution Review Group had urged in 1996 that "definition is needed as to when the unborn acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect."

The court had heard conflicting evidence from several witnesses on the issue of when life began, he added.

Some argued it was from the moment of fertilisation, some said it was when a fertilised egg was implanted in the uterus, while others said it began at the formation of the "primitive streak". Some said it was impossible to decide.

It was not the function of the court to choose between competing religious and moral beliefs, the judge said.

It was precisely because of the uncertainty and lack of agreement among the scientific and medical community as to when life began that most people agreed that embryos in vitro were deserving of special respect and that their very creation raised moral and ethical issues which imposed restraints on what may be done with them.

Having examined various Supreme Court decisions, the judge said he believed these confirmed the linking of Article 40.3.3 with the abortion issue and equated unborn with an embryo "which has implanted in the womb, a foetus".

Given his conclusion that the embryos were not unborn within the meaning of Article 40.3.3, the judge said he did not have to decide whether the husband could be forced to become a parent without his consent nor whether the people, in adopting Article 40.3.3, had intended that the use of widely available forms of contraception would become unconstitutional.