Minister for Health Mary Harney will bring proposals to Government next year to allow for the drafting of legislation to govern assisted human reproduction (AHR).
“The Government fully accepts its responsibility to put proposals to the Oireachtas for legislation to regulate assisted human reproduction,” a Government spokesman said last night. He was speaking after the Supreme Court found that frozen human embryos are not protected under Article 40.3.3 of the Constitution, which protects the right to life of the unborn.
The five-judge court criticised as “disturbing” and “undesirable” the State’s continuing failure to enact laws to regulate fertility treatment and warned of possible future legal actions as a result. In his judgment, Mr Justice Adrian Hardiman pointed out there has been a “marked reluctance” on the part of the legislature to legislate on the issues raised, going back to the X case 18 years ago.
Mary Roche, who sought the implantation of three embryos created with her husband during IVF treatment, argued they were protected and their right to life should be vindicated by their implantation. The court ruled unanimously that they should not be implanted.
Six embryos were created during the treatment Ms Roche underwent with her husband Thomas in 2002. Three were implanted, resulting in the birth of a daughter, but her marriage broke up, leaving the other three frozen in the clinic where she had received the treatment.
In July 2006 the High Court ruled there was no agreement between her and her husband as to what should be done with the embryos, and later ruled the embryos were not the “unborn” under the meaning of the Constitution. Ms Roche appealed but the Supreme Court agreed with the High Court.
Ms Roche said she respected the decision. “I acted as any mother would do to defend the interests of my unborn embryos and I trust that the public will understand that I had no alternative . . . ,” Ms Roche said through her solicitor, Alan Daveron, in a statement outside the court.
A statement issued on behalf of Thomas Roche said he was “glad that important constitutional and legal issues have been highlighted by the case and feels now that the debate can be advanced in the public interest without the involvement of himself or his family”.
Delivering his judgment, Mr Justice Hardiman said: “If the legislature does not address such issues, Ireland may become by default an unregulated environment for practices which may prove controversial or, at least, give rise to a need for regulation.” Mr Justice Hugh Geoghegan said the absence of laws indicating how embryos should be treated was “undesirable and arguably contrary to the spirit of the Constitution”.
The Government spokesman said Ms Harney briefed her ministerial colleagues at a recent Cabinet meeting on the issues involved in the case. Ms Harney and the Government took the view that the Supreme Court decision was a “significant milestone”.
The Pro-Life Campaign expressed disappointment with the decision. However, the campaign’s spokesman Dr Berry Kiely said the judgment “in no way impedes the Government from introducing legislation to protect early human life”.
Green Party chairman Dan Boyle said there would be a variety of opinions on yesterday’s judgment within his party. He said the Greens would now await a report on the judgment being brought to Cabinet.
“It’s not something you can make a snap response to as there are sensitive moral issues involved,” Mr Boyle said.
A Department of Health statement confirmed that yesterday’s judgment was being “actively” examined by the department.
“The development and use of AHR technologies raise an array of legal, social and ethical questions that are complex, profound and divisive.”
Issues to be considered in the drafting of the legislation include: legal parentage; arrangements for consent; certain practices on gametes and in-vitro embryos and donations of sperm, ova and embryos.