The case raises key constitutional questions, writes Carol Coulter, Legal Affairs Correspondent
A dispute about the ownership of surplus embryos held by a Dublin fertility clinic will raise fundamental constitutional questions, as well as asking the courts to define parenthood and interpret recent decisions of the European Court of Human Rights in an Irish context.
The dispute set to go to the High Court is between a woman and her estranged husband, who had participated in an IVF programme.
An IVF cycle typically produces six or seven fertilised embryos. However, it is dangerous for the health of both the mother and the children for them all to be inserted into her womb. Recently the practice in most fertility clinics has been to implant one or two and freeze and store the rest for later use.
In this case it is understood the couple had one child and signed a bilateral agreement that there must be joint consent about the future of the remaining frozen embryos. The couple later separated and the wife now wants to have one or more of the frozen embryos thawed and implanted.
The husband refuses to give his consent and the clinic is in legal difficulty about how to proceed.
At one level, this concerns a dispute over the joint property of a marriage, but it also raises the issue of whether a man can be forced to be a father against his will, with all that implies in Irish law. This includes the right of the child to a relationship with his or her father, the right to maintenance and, in due course, to a portion of his or her father's estate.
On the other side, the wife is likely to invoke her right to have the children she planned to have, and took measures to have, with her husband.
The European Court of Human Rights has already decided that there is no absolute right to procreate, though there is a right to the most up-to-date medical treatment obtainable.
It has also decided that a man cannot be forced to be a father against his wishes. Its jurisprudence therefore appears to be on the side of the husband.
On the other hand, the Irish Constitution provides specific protection to the life of "the unborn". This legal entity has never been defined by the courts.
A constitutional amendment proposed by the last government that would have defined the unborn as coming into existence when implanted in the womb of a woman was narrowly defeated.
Catholic theology and anti-abortion activists regard human life as beginning at the moment of conception, when the egg is fertilised by a sperm. This means that unimplanted embryos should come within the constitutional definition. If and when this case comes to court, the court will have to decide, first of all, whether the embryos are property - like a house or any other marital property - to be disposed of in accordance with legal precedence, or whether they are human life, in which case they will command special protection.
Only when this issue is decided can the court go on to consider whether the former wife can have the embryos implanted without her husband's consent.
It is uncertain even whether the case will be heard in public, as a major constitutional case should be, or in camera as a family law case.
Whatever the decision of the High Court, this case is not likely to end there and will join the X case - concerning the threat of a pregnant 14-year-old to end her life if she was not permitted have an abortion abroad following a rape - and the C case, involving a health board providing this option to another child rape victim, in the annals of the jurisprudence on Article 40.3.3.
Commission on Assisted Human Reproduction: work to date
The Commission on Assisted Human Reproduction was set up in March 2000, under the chairmanship of Prof Dervilla Donnelly. Its terms of reference were to prepare a report "on all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in this area".
The then minister for health Micheál Martin said there was no regulation of this area of medicine in Ireland, despite the fact that thousands of Irish couples had availed of various technologies to help them conceive a child. The only regulation was that provided by the Medical Council, but this did not extend to other disciplines that could be involved, such as scientists, nor did it settle some complex questions concerning the status of such children. It agreed in new guidelines in 2004 that unwanted frozen embryos produced during IVF treatment could be "adopted" by another couple but this raised legal questions that were not addressed by the Medical Council.
The commission's report was published in May 2005, with some controversial proposals. These included a majority recommendation that only an implanted embryo should attract the protection guaranteed to the unborn by the Constitution. This paved the way for a number of other proposals, including that surplus embryos produced during IVF could be subject to experiment. The commission also recommended a new regulatory body to oversee all aspects of assisted reproduction and the establishment of guidelines governing sperm, ova and embryos.
Mr Martin told a conference organised by the Commission on Assisted Human Reproduction in February 2003 that legislation could be with us in 2004. Three years later there is no sign of any legislation even being drafted. ... CAROL COULTER