THE SUPREME Court has every right to feel aggrieved on this occasion. The long-standing failure of the legislature to live up to its responsibility to put in place a legal framework for assisted human reproduction (AHR) may even be, in Mr Justice Fennelly’s words yesterday, “arguably contrary to the spirit of the Constitution”. Mr Justice Hardiman warns: “Science will not stand still waiting for us to update our laws.”
Science has not stood still, in the five years since the Report of the Commission on Assisted Human Reproduction, and certainly not in the 18 years since the X case. The law is a gaping chasm of uncertainty in an area of huge concern to many childless families. The Government is promising to act next year. There is no regulatory authority for AHR, protection or guidelines for frozen embryos in IVF clinics, their use, their disposal, or storage, no common rules on informed consent, no licensing of clinics, no legal provision to safeguard prioritisation of a child's welfare, or on surrogacy. . .
The court’s ruling in the Roche case yesterday was, however, a model of clarity which will have important effects far beyond the confines of its circumstances. Most importantly, its unambiguous recognition that the embryo does not acquire the status or rights of the “unborn”, safeguarded in Article 40.3.3 of the Constitution, until implantation in the womb helps enormously to copperfasten the legality of IVF treatment. Mrs Justice Denham, in her elegant judgment linking the physical connection of implantation to the acquisition of rights over the mother, points out that to do otherwise would have raised the absurd possibility that the State might have to vindicate the right of the frozen embryo to be born against the wishes of both parents.
The ruling also removes long-standing legal uncertainty, as Mr Justice Hardiman points out, over the legality of contraceptive methods relying on preventing implantation such as the IUD and the morning after pill.
That is not to say the embryo does not require protection in law, as the judges make clear, but the scope of legal protection is a matter for the Dáil. It is for the Dáil, for example, to decide how to place the welfare of the child at the centre of a legal framework for AHR, and whether – hopefully not – IVF treatment should be available only to married couples.
The ruling also has huge significance for important research on stem cells. Ambiguity about the legal status of the embryo has seriously inhibited stem-cell research on the surplus embryos that IVF inevitably produces.
On the substantive issue before the court, the finding that it would not be right to force the state of parenthood on an unwilling prospective parent is welcome. Consent must be wholehearted and genuine, and cannot be presumed. The obligations of parenthood are rightly onerous, both constitutional and social, as many a reluctant father has found when he has tried to walk away from an unplanned pregnancy. It is only right that if society is to expect every father to do his duty, it cannot foist fatherhood on him against his will.