Every member of the human species, at all stages of his or her life, has a unique worth, writes William Binchy
The Irish courts are now faced with the task of articulating clear legal principles relating to the awesome subject of the value ascribed to human life in its earliest stages. The issue arises in the context of a dispute between parents as to the fate of embryos they have conceived.
Had the disagreement related to frozen eggs or sperm, analogies with property law might possibly have been helpful. Here, however, the High Court is dealing, not with property, which is capable of being used by its owners or destroyed, but rather with human life, each embryo having its own unique human characteristics.
Under Article 40.3.30 of our Constitution, following the Eighth Amendment of 1983, the State recognises and guarantees to respect the right to life of the unborn, with due regard to the equal right of life of the mother, so far as is practicable. Much discussion has taken place on the scope of the concept of the "unborn". Some protagonists have argued that it requires not merely life before birth but also a present capacity to be born. This is, in my view, a mistaken approach.
The Eighth Amendment can best be understood as addressing normative questions about the value to be ascribed to unborn human life. The philosophical character of the amendment explains the scope of its subject matter. In taking the position (albeit an internationally contested one) that unborn human life has an equal value to born human beings, the amendment has to be interpreted as embracing all unborn human life.
Were it not to do so, the amendment would lack philosophical coherence and normative clarity. If a court held that some human beings fall outside this value ascription because of their geographical location - outside their mother's womb - this would involve normative inconsistency.
Unborn human life, in the framework of the amendment, has equal value with born life, not because it has passed any particular milestone in its development but because it shares a common humanity and dignity with all other living human beings. Conception is the starting point. Any later point in life's progression would involve precisely the kind of distinction in the value of human beings which the amendment is seeking to repudiate.
It appears therefore, that embryos are protected by Article 40.3.30 of the Constitution. What follows from this? Some conclusions are easy enough to reach. The intentional destruction of embryos on the basis that they are akin to property would not be consistent with Article 40.3.30. The idea that either parent should be able to insist on such destruction seems inconsistent with protecting their right to life so far as is practicable. The position is different, in practice, from that arising after implantation, since it is possible for a pre-implanted embryo to be implanted successfully in the womb of a person other than its genetic mother.
It is perfectly possible for a court or the Oireachtas to protect unborn life so far as practicable without preventing the process of assisted human reproduction. We are not in an "all or nothing" situation. If we were to withdraw protection from embryos, that would fail to respect their dignity and worth. Marvellous advances have taken place in assisted human reproduction over the past couple of decades and there is the promise of much more. As a society we can embrace these advances to the extent they respect human dignity. If, in our understandable desire to move faster than this, we abandon the respect that is due to all human life, that is too big a price to pay.
It is worth noting that the European Court of Human Rights, in its decision last week in Evans v the United Kingdom, held that states enjoy a margin of appreciation under Article 2 of the European Convention on Human Rights to prescribe under their national law when the right to life begins. Thus, the United Kingdom was considered entitled to deny the embryo independent rights and interests. Equally, as a result of this decision, Ireland is entitled to recognise the right to life of the embryo before implantation.
The Commission on Assisted Human Reproduction in its report made recommendations by a majority that envisaged the deliberate destruction of the embryo. Prof Gerry Whyte, one of Ireland's leading constitutional law scholars, did not agree. He considered that denying protection to the embryo before implantation made the moral status of the embryo conditional on its physical location rather than on its essential nature. Moreover, in the case of in vitro embryos, such an approach would also make the legal protection afforded to the embryo conditional on the decision of another party to transfer the embryo, rather than inherent in its nature as human life. It seems fair to say that these concerns were not effectively answered by the other members of the commission.
Prof Whyte's analysis demonstrates the weakness of the suggestion of the Constitution Review Group in its report published a decade ago that the word "unborn" seemed to imply "on the way to being born" or "capable of being born". Such an interpretation would give to other parties the power to make decisions the effect of which would be to confer or deny constitutional protection to unborn human life. It is an achievement of science that we can create human life outside the womb. This great achievement should not afford the basis for the denial of human rights.
Medicine and science carry an enormous potential for good, as well as the danger that we may be tempted to use their advances in a way that detracts from human dignity. An enlightened judicial interpretation of Article 40.3.30 can offer guidance as to how best to make this distinction.
Human dignity is a core value in the Constitution and in the foundational international human rights instruments. It posits an understanding of human beings as having inherent worth and equality. It is a profoundly democratic concept, protective of those whose status is at any time endangered by hostile or dismissive attitudes in a society. Article 40.3.30 seeks to capture the idea that every member of the human species, at all stages of his or her life, has a unique worth. This is the foundation on which good law, fully respectful of human rights, may be built.
William Binchy is Regius professor of laws at Trinity College Dublin