In interpreting in RvR the meaning of "unborn" in Article 40.3.3 of the Constitution Mr Justice Brian McGovern yesterday made an important and welcome affirmation of the rightful places and distinct responsibilities of the judiciary and politicians. It was for him to interpret the law as it stands, like it or not, and for politicians to make it.
The courts, he argued, have declared that the wording of Article 40.3.3 was "for the purpose of making secure the prohibition on abortion" and not for that of defining the status of an embryo in vitro which was never contemplated by the people when they voted on the Eighth Amendment. "It is not for the courts to decide whether the word 'unborn' should include embryos in vitro. This is a matter for the Oireachtas, or for the people...."
Subject to the Supreme Court upholding the McGovern view, the ball is now firmly back in the court of the politicians who have for so long ducked and weaved to avoid confronting these thorny issues. Mr Justice McGovern describes the status of embryos outside the womb as "very precarious", and although such embryos do not enjoy "personal rights" under the Constitution, he makes clear that the authorities have a responsibility to legislate to ensure the "special respect" which they are due.
The framework for such legislation is there in the 2005 report of the Committee on Assisted Human Reproduction chaired by Prof Dervilla Donnelly. It recommended the establishment of a statutory regulatory body to oversee all aspects of assisted human reproduction. All but one member of the 24-strong committee also endorsed the view that legal protection should be accorded to an embryo only from the time of implantation in the uterus rather than the moment of fertilisation. Other recommendations included allowing the donation of sperm, ova and embryos, surrogate motherhood, assisting unmarried and same-sex couples to have children, and allowing restricted research on embryos, under licence.
Yesterday's ruling provides the legal clarity which should free the hands of legislators to proceed to make hard, badly needed decisions. Whether they will do so ahead of an election is another matter. Importantly, it also lifts the cloud hanging over IVF clinics, particularly over procedures needed to deal with the problem of frozen embryos surplus to aspiring mothers' needs.
The assertion from some that the constitutional protection of the unborn has been shown to be inadequate, with its implicit suggestion that perhaps we need another referendum, should be resisted. That is not a road we should go down again.