The central issue under consideration in the current case is whether embryos frozen as part of an in vitro fertilisation (IVF) procedure can be considered "unborn", as defined in Article 40.3.3 of the Constitution. This could bestow on them a number of personal rights, again as defined in the Constitution, possibly including the right to be returned to their mother and her uterus.
The Article recognising the right to life of the unborn was inserted in the Constitution in 1983, following a referendum. However, no definition of unborn was given.
The first "test-tube baby" born after IVF treatment arrived in Britain in 1978, but this procedure was not available in Ireland at the time of the Referendum. The first Irish test-tube baby was delivered in 1987.
In the current case, Mr Justice Brian McGovern has ruled that Article 40.3.3 was inserted in the Constitution to make secure the prohibition on abortion and its meaning was not intended to include embryos in vitro.
Expert witnesses called during the case gave varying definitions of when life begins. Some argued that it started from the moment of fertilisation of the female ovum by the male sperm. Others said it was only when the embryo became implanted in the uterus that the potential to be born existed. Others said human life began at the formation of the primitive streak and another group contended that it was impossible to say when it began.
In 2005, the Commission on Assisted Human Reproduction recommended that an embryo formed by IVF should not attract legal protection until placed in the human body. As yet, none of its recommendations has been implemented.
In his judgment, Mr Justice McGovern said it was not possible for the court to decide the question, and that the point at which people used the term "human being" depended on issues other than science and medicine. This was a matter for the Oireachtas or, if a referendum was put to them, the people to decide.
- Paul Cullen