Mr Justice McGovern will announce this morning how he will proceed to handle the private and public aspects of the case involving the fate of three frozen embryos. Carol Coulter, Legal Affairs Correspondent, reports.
He will tell the two parties, the parents of the embryos, whether he will decide first on the issue of the nature of their contract with the fertility clinic without hearing arguments on the constitutional issues.
The wife is asking the court to order the clinic to release the embryos for implantation in her womb, so that she can have another child. The couple already have two children, one born following a normal conception, the other through IVF. That cycle of fertilisation produced the surplus embryos that are at the centre of this dispute.
The couple have since separated, and the husband is refusing his consent for the implantation of the embryos.
The dispute arises from the contract signed between the couple and the clinic when they embarked on the IVF treatment and had the wife's eggs fertilised outside the womb.
She is arguing that the consent they gave together to this procedure was irrevocable. Yesterday her counsel, Gerard Hogan SC, pointed out that later, when she had the first three embryos - which led to a pregnancy - implanted, her consent alone was required to the medical procedure involved. Therefore, it is argued, only her consent is required for the same procedure a second time.
Mr Hogan also argued that the constitutional protection afforded to the unborn by the Constitution made the position of the embryos exceptional, compared with similar situations that might arise in other jurisdictions. They constituted human life, and as such deserved protection, which would be best afforded by implantation in the woman's uterus.
Counsel for the Attorney General Donal O'Donnell SC said that the AG was a notice party to what had started as a matter of private, contractual law. The court should avoid entering upon a constitutional issue if it was possible to do so, and should hear evidence of a non-constitutional nature first.
If the constitutional issues were decided, this could have significant impact on other couples seeking fertility treatment, and on people using certain forms of contraception, who were not represented in the proceedings, he said.
Counsel for the husband, John Rogers SC, agreed on the need to decide the contractual issue first. The questions were whether there was consent, what the consent was to, could it be withdrawn, and was it withdrawn. These issues had to be determined before any other issues.