We need legislation to protect people seeking reproduction treatment and their offspring, writes BREDA O'BRIEN
CONTRARY TO popular belief, limbo, that is the state in which unbaptised infants were supposed to spend eternity, was never a Catholic dogma. Limbo quietly fell from favour after the Second Vatican Council. The Supreme Court has, in contrast, defined a legal limbo for embryos, who now occupy a very strange position indeed.
In this week’s judgments which upheld the High Court decision not to allow three frozen embryos to be implanted in their mother, embryos are recognised as human, entitled to moral status and respect, but not to the same protection as an implanted embryo.
In short, the court has decided on where the embryos should be located, and on the basis of that location, denied them the right to life. Where is that location?
Indefinite storage in a freezer, in a kind of cryogenic limbo. All other embryos now have an undefined status, other than that of not having the same human rights as an implanted embryo.
None of the Supreme Court judgments consider the interests of the embryos. Of course, they couldn’t, if they were going to find that embryos were not entitled to the protections afforded to implanted embryos.
Those rights largely mirror the rights accorded to people who have been born, while acknowledging the unique relationship between the unborn child and his or her mother.
Embryos only come into existence outside the womb because people make choices to create them. Although they have no choice in the matter, the method of creation apparently denies them the rights of embryos conceived in more traditional ways. Had they a voice, which they do not, no doubt they would have had a preference to at least be given a chance to be born.
True, it would not have been easy having a father desperate to relinquish his responsibilities to them. Only last week the Supreme Court ruled that parental rights of access could not be denied to a sperm donor. This week, fatherhood seems to be a choice you can revoke when it comes to responsibilities.
And please don’t tell me that embryos are just a bunch of cells. Why do women risk their health by taking megadoses of powerful drugs and undergo painful and invasive procedures, if the desired result is just any old clump of cells? Denying the full humanity of embryos is like six-year-olds vehemently denying that they ever wore nappies. We all started life as a tiny clump of cells.
However, Mrs Justice Susan Denham reminded us that the court is not there to speak about “the wonder of life”. It is there to interpret the law, and here the law allocated human rights on the basis of location, specifically, location in the mother’s womb, or outside it, if you have reached the age to be born or older.
She did not close the door on some form of legislative protection for embryos. Mr Justice Nial Fennelly went so far as to suggest that “arguably, there may be a constitutional obligation on the State to give concrete form to that respect”. Will the State be rushing to provide that legislative respect? Not likely. Successive governments have dodged this dilemma. However, we elect people to provide leadership, not to be cowards.
Even more reprehensibly, the State believes that protecting the embryo will damage the highly lucrative fertility industry, and prevent other profit-making by those who regard embryos as merely raw material for experimentation and research.
It was distressing to see the extent to which the judgments relied on the flawed 2005 report of the Commission for Assisted Human Reproduction. The commission was stacked with insiders from the assisted human reproduction industry. Only one member of the 25-strong commission, Trinity’s Prof Gerry Whyte, recommended legal protection for the embryo before implantation.
The judgments highlighted many troubling aspects. The consent forms refer to little other than consent to medical treatment and the father’s willingness to consider himself the legal father of any child, a startlingly inadequate level of consent. Vulnerable people who are looking for assisted human reproduction treatment are entering an emotional and ethical minefield, and the Government is doing nothing to protect them or any offspring.
We need child-centred legislation now if we really care about families, instead of just constantly pretending that we prioritise the needs of the young.