The High Court will give its decision on July 18th on whether documents signed by a husband four years ago consenting to fertility treatment for his estranged wife constitute a consent by him to have three frozen embryos taken out of storage and implanted in her uterus.
Mr Justice Brian McGovern will also decide on that date, if there was such a consent, whether it may be revoked in light of the couple's separation and the husband's opposition to having any more children with his wife.
The couple have two children, a son born in 1997 and a daughter conceived in early 2002 after IVF treatment.
The 41-year-old woman has told the court she regards the embryos as "our children". She said she regards her 44-year-old husband as the father of any child or children which may result from such implantation and expects him to assume responsibility, including financial responsibility, for them.
If the judge finds on July 18th there was an irrevocable consent, that will conclude (subject to appeal to the Supreme Court) the action brought by the wife for a court order permitting implantation in her uterus of the three embryos, fertilised with her husband's sperm during IVF treatment in early 2002 and currently frozen in the Sims fertility clinic in Rathgar, Dublin.
However, should the judge find there was either no consent or no irrevocable consent, the case will proceed to address public law and, perhaps, constitutional issues relating to whether an embryo constitutes human life and what precisely is the definition of "unborn" as set out in the 1983 constitutional amendment under which the State guaranteed by its laws to vindicate the right to life of the unborn.
If the case is to proceed, the indications from the parties yesterday were that it will probably not conclude in the present law term, which ends on July 31st, but may have to resume in October.
John Rogers SC, for the husband, yesterday told Mr Justice McGovern that his side had no specific indication of exactly what case the wife intends to make on those points.
He said all there was in the legal pleadings as of now was a bare assertion that an embryo constitutes human life. His side needed to know exactly what case they had to meet, he said.
The judge directed that expert reports addressing the issues in the case which the parties intended to use should be exchanged between the sides by July 14th.
This "immensely complicated" matter dealt with all sorts of issues, such as medical, ethical, and biological ones, he said. It would be most unsatisfactory, given the complexity of the issues, if cross-examination of expert evidence were to take place "on the hoof".
Donal O'Donnell SC, for the Attorney General, said reports and witness statements would be most helpful as, in order to to get through the evidence, they "needed to know where they were going". Inge Clissman SC, for the wife, said that would be done.
Mr Rogers had previously indicated that he may have difficulties with proceeding with the case on July 18th as another complex family law case in which he is involved is due to resume on the same day.
However, he told the court yesterday that he is prepared to undertake this case.
