The frozen embryo case heard in the High Court this week could be the first of many to arise from the IVF regulation vacuum that exists in Ireland, writes Carol Coulter, Legal Affairs Correspondent
Many people will identify with one or other of the main parties in the case that came before the High Court this week over the fate of three frozen embryos, created during in vitro fertilisation (IVF) treatment.
The woman feels a strong sense of identification with the embryos, created by her eggs and her former husband's sperm, and potentially the siblings of her two existing children. She wants to give them "the right to life" by implantation in her womb. Her husband, from whom she is separated and who is in another relationship, does not want any more children of his marriage, who he would be legally obliged to support.
The case this week focused on the nature of the contract the couple signed with the Sims International Fertility Clinic in Rathgar. An attempt by lawyers for the woman to have the "right to life" of the embryos under the Constitution dealt with at the same time failed, and this will now only arise if she loses her case.
The couple, who the court asked should not be identified, went to the clinic seeking IVF treatment after the birth of their first child through a normal conception. There they both signed consent forms for the process of egg retrieval and fertilisation, including a statement from the husband that he would become the legal father of any "resulting child" of the procedure.
The wife signed a separate consent form for the medical procedure that implanted the first lot of embryos in her womb.
She is contending that the remaining frozen embryos fall within the description of "resulting child" in the contract, and that his consent was irrevocable. He is claiming that he consented to the one attempt at IVF, and understood the frozen embryos would only be used if that failed.
The court is likely to rule on the meaning of the contract next week. If it finds in favour of the husband, then the questions of the status of the embryos, whether they fall within the ambit of protection afforded to the "unborn" by the Constitution, and how their right to life can be vindicated, are likely to be raised. If the court finds in favour of the woman, there will be no need to examine these issues.
IVF treatment requires the stimulation of the woman's ovaries by drugs, so that she produces a number of eggs that are then harvested and combined with her partner's sperm to create embryos (usually known by the technical term zygotes at this very early stage). If they are viable, they are then available for implantation in the womb.
However, recent developments in IVF technology have led to the implantation of no more than three embryos at a time, to avoid a multiple pregnancy with the resulting dangers to the health of both mother and babies. It is usual now to freeze the surplus embryos for implantation at a later date - typically if the first IVF attempt fails.
This gives rise to the vexed question of the status of those frozen embryos - who owns them, whether they have any independent rights, and what happens if the circumstances of the couple change. The Constitution, which guarantees the right to life of the "unborn", has nowhere defined the term, and there are different views on whether or not it extends to embryos prior to implantation, when they are not yet capable of being born.
THE ROTUNDA HOSPITAL, which pioneered IVF in Ireland, anticipated some of these questions when it embarked on the freezing of embryos in 1998. The then Master of the hospital, Dr Peter McKenna, told The Irish Times at that time that couples involved in the procedure signed a lengthy contract that allowed for the embryos to be "thawed without transfer" - that is, allowed to die - in certain circumstances.
This contract includes the following statement: "In the event of the death of the husband or the wife or both of us, or in the event of a change of marital status of the husband or the wife, we hereby agree that no transfer of zygotes shall occur thereafter and that any and all Cryopreserved and Stored Zygotes shall be removed from storage and thawed without transfer by HARI [ the Rotunda fertility unit] and its successors, and we consent to this."
Dr McKenna explained at the time that this meant that if the husband died, the widow could not have the zygotes implanted, or if she died the husband could not have them implanted in anyone else, and the hospital would not implant them if the couple had separated. Thus it avoided becoming involved in any dispute about ownership.
However, in the absence of any regulation in Ireland of fertility treatment, each clinic is free to draw up its own contract concerning not only this issue but many others as well.
Massive technological developments in the area of human fertility have given rise to a host of possibilities for couples - or, indeed, single people or same-sex couples - who want assistance in having children. These include not only the widely practised procedure of IVF involving the egg and sperm of the wife and husband, but also IVF involving donated eggs or donated sperm.
It does not end there, and it is all happening in a regulation vacuum.
ACCORDING TO THE Report of the Commission on Assisted Human Reproduction (CAHR), published in April last year, there are nine fertility clinics operating in the State, of which eight responded to the commission's survey. As well as IVF, the services they provided included insemination by the woman's husband or partner, insemination by a donor, ovum donation by a third party for IVF, and IVF with donor sperm. They all provided facilities to store sperm and about half provided for the freezing and storage of ova and zygotes.
The commission also surveyed gynaecologists working in this area. Of those who responded, 96 per cent would provide treatment for unmarried couples, 53 per cent would provide treatment for single people, and 13 per cent would provide treatment for same-sex couples.
It is likely, therefore, that there are children living in this State and embryos in existence who are the product of donated eggs or sperm. While the question of surrogacy did not arise in this survey, it is likely that some infertile couples, or same-sex couples, have explored this option in relation to having a child. The parentage of such children and their legal status is totally unclear.
It will be only a matter of time before there are further court cases involving, perhaps, a dispute between a surrogate mother and a commissioning couple; or an attempt by a widow to have implanted a frozen embryo created by IVF; or a legal challenge to a same-sex couple seeking to have a child through donor-assisted IVF or surrogacy, to speculate on just a few.
IT IS IMPOSSIBLE to predict how such cases might turn out. There is international law on the matter, notably from the European Court of Human Rights, but this has been developed in the context of most states having their own laws regulating assisted human reproduction.
For example, the clearest statement of the law to date came last March in the Evans case, where a woman was challenging a decision of the High Court in England that had allowed her former partner to withdraw his consent to the implantation of embryos created through IVF.
The UK's Human Fertilisation and Embryology Act of 1990 provides for the withdrawal of consent up to the moment of implantation, and the European Court of Human Rights found against her and said that this came within the rights of individual states to set their own laws in sensitive areas.
There has been pressure for Irish regulation of this area, with Senator Mary Henry first raising the matter almost 10 years ago. The CAHR was set up in 2000 by the then Minister for Health, Micheál Martin, to examine all the social, medical, scientific and ethical issues surrounding assisted human reproduction. After a lengthy process of research and consultation, it reported five years later. Its report was referred to the Joint Oireachtas Committee on Health and Children, where it has languished since.
Only last week, as Mr and Mrs R were thrashing out the question of the future of their embryos in the High Court, the Fianna Fáil majority on the committee sought to delay further any prospect of regulation by seeking further submissions.
The Minister for Health, Mary Harney, had indicated she is preparing legislation in this area.
Any delay is of no help to future Mr and Mrs Rs, who could be entering a legal minefield when they step over the threshold of a fertility clinic.