Legal status: The absence of any rules or regulations governing IVF treatment in Ireland means that embryos outside the womb "have a very precarious existence", Mr Justice Brian McGovern warned in his judgment yesterday.
While it was a matter for the Oireachtas to decide whether to implement the recommendations of the Commission on Assisted Human Reproduction, the courts were, in the meantime, being asked to deal with "a complex dispute involving social issues which should be governed by a regulatory regime established by an Act of the Oireachtas".
He said the Government in 2002 established the Commission on Assisted Human Reproduction to make recommendations in the area of IVF. Its first unanimous recommendation was that a regulatory body should be established here to regulate assisted human reproduction facilities. A majority had also recommended that the embryo formed by IVF should not attract legal protection until placed in the woman, he said.
Earlier, he said that as the three frozen embryos were not unborn within the meaning of Article 40.3.3, an issue arose as to what, if any protection, could be afforded to them.
While there was considerable disagreement over whether embryos constituted viable human life prior to implantation, all agreed they deserved respect, he said.
However, while the Medical Council had guidelines prohibiting the deliberate destruction of in vitro embryos, those ethical guidelines did not have legal effect and only offered limited protection.
The fact that something was not prohibited by law did not mean it was morally acceptable to carry out that act. "If the law is to enforce morality, then whose morality does it enforce?" he asked. Laws should and generally did reflect society's values, but it was the duty of the courts to apply the law, not morality.
IVF treatment was governed in many countries by rules and regulations, the judge noted. "It seems to me the absence of any rules or regulations in this jurisdiction means embryos outside the womb have a very precarious existence."
He considered it most unlikely the woman and her husband would agree on what would happen to the embryos. That meant they were likely to remain in frozen storage indefinitely.
