Today the High Court will start to hear a case that began seven months ago. It concerns a couple who underwent fertility treatment in a Dublin clinic, as a result of which a daughter was born three years ago. The wife also had another child.
During the treatment six embryos were produced and three were implanted. The remaining three were frozen and stored, as is now common practice in IVF treatment. The couple signed a bilateral agreement requiring the consent of both of them for the embryos to be thawed and implanted.
The marriage subsequently broke up, and the couple separated. The wife, now 38 and anxious to have more children, sought the implantation of the surplus embryos in her uterus last November, but the clinic would not do so without the husband's consent. This was not forthcoming.
As a result, she sought orders in the High Court last December attempting to force the husband to consent.
The case raises very fundamental questions, arising out of the protection granted to the "unborn" by constitutional amendment in 1983. The Attorney General has been joined to the action.
It also raises issues about the treatment of surplus embryos produced during IVF treatment, which is not regulated in any way. A report by a Commission on Assisted Human Reproduction was presented to the Government over a year ago, and has been sporadically discussed by the Oireachtas committee on health, but there is no sign of any of its recommendations being translated into law.
The fundamental question is whether the term "unborn" in the Constitution covers embryos, created outside the womb by the fusion of sperm and eggs, before they are implanted in the woman's womb.
If such embryos are "unborn" they have independent constitutional rights and their right to life, guaranteed by the Constitution, would be denied by any move to destroy them. If they are not regarded as "unborn" they can be destroyed and, indeed, be the subject of research.
The Commission on Assisted Human Reproduction, with one dissenting voice, recommended that an unimplanted embryo not be afforded constitutional protection, but this thorny stick has yet to be grasped by the Government or any major political party.
As in the X case, this difficult question now falls to the courts. Counsel for the wife will argue, among other things, that the embryos are entitled to the right to life, and should be implanted.
Counsel for the husband will argue that they are not entitled to such full constitutional protection. If he prevails, then they can be defined as property, to be disposed of in accordance with legal precedence like a house or other marital property.
The case also involves other issues, relating to the nature of the family, the issue of consent to parenthood, whether parental obligations and rights can be abrogated, or whether a person can be forced to be a parent against his will, with all the constitutional duties this involves.
A child, however conceived, has maintenance and inheritance rights from both parents.
Whatever the outcome of the case in the High Court, it is likely to go to the Supreme Court for final adjudication.