The decision in the frozen embryo case means that the courts must now turn to more difficult constitutional issues, writes Carol Coulter, Legal Affairs Correspondent.
The court's decision in the frozen embryo case not only paves the way for a major constitutional action, it also laid down minimal conditions for contracts in cases involving IVF and frozen embryos.
Had the court decided that the contract signed by the now estranged couple committed both of them to the implantation of the three embryos frozen in the course of IVF treatment, that would have avoided any need to examine the status of those embryos.
But the court decided otherwise. Mr Justice McGovern ruled that the contract signed by the husband did not give any commitment concerning the future of the surplus embryos created during the IVF process, which had already produced one child. He could therefore not be compelled to become a father again, in the context where the couple had separated.
When the legal action began, the wife sought a number of orders, including an order that the embryos be returned to her, claiming that this was provided for by the contract. She also sought an order vindicating the right to life of the embryos and their and her right to a family life. These issues will now have to be considered in the case which opens tomorrow.
Arguments likely to be put will include that the "unborn", whose right to life under the Constitution is protected by Article 40.3.3, includes embryos created outside the womb and not implanted in it. Counsel for the wife are likely to argue that they are human life, that they cannot be defined as any other form of life, and that, because they have not yet been born, they must be regarded as "unborn".
Counsel for the husband is likely to argue that "unborn" must imply "capable of being born", therefore an embryo implanted in a woman's uterus.
The position of counsel for the Attorney General, on behalf of the State, is that the issue of when life begins is one that the courts will not be asked to decide.
Already the State has argued before the European Court of Human Rights in Strasbourg that not all human life might be regarded by the courts as "unborn", suggesting that a foetus suffering from a fatal abnormality that would not allow it to live more than days outside the womb might not receive constitutional protection.
Whatever the outcome of this case will be, it is likely to be referred to the Supreme Court because of the gravity of the issues at stake.
However, those involved in fertility treatment and concerned with the ethics of assisted reproduction are likely to focus on other aspects of yesterday's judgment.
The judge was highly critical of the consent forms signed by the couple in this case. Mr Justice McGovern described as "curious" the fact that there was no document furnished to the couple setting out what was to happen to the frozen embryos either in the event that the plaintiff became pregnant from the first implantation or if their circumstances changed through death or separation or divorce. The consent forms were unsatisfactory, he said, both because they were vague in certain important aspects and as they did not cover contingencies that might arise.
This highlights the unregulated nature of fertility treatment in Ireland. Unlike in most European countries, there is no legislation and no regulation in this area, and the report of the Commission on Assisted Human Reproduction has been with the Oireachtas Committee on Health for over a year without any recommendations being made. The Minister for Health, however, has indicated she hopes to legislate in this area in the lifetime of the Government.
Such legislation will have to tackle the question of the nature of human embryos prior to implantation, although, in the light of this case, the courts might take this burden from the shoulders of the politicians. Ms Harney will then have to consider what regulations should apply to those offering fertility treatment, and who should implement them.
The commission was set up in 2000 to examine all the social, medical, scientific and ethical issues surrounding assisted human reproduction. There are too many of these issues to leave them all to the courts.