The right to life of an embryo begins at fertilisation and is superior to any entitlement of a man not to have a child against his wishes, the High Court has been told.
Inge Clissman SC, in legal submissions for the 41-year-old woman who wants three frozen embryos, created following IVF treatment, returned to her, argued before Mr Justice Brian McGovern that Article 40.3.3 - the 1983 anti-abortion amendment to the Constitution endorsed after a controversial referendum - requires the State to vindicate the right to life of the unborn, and that included the embryo.
The amendment was not intended merely to limit abortion and the court should construe the meaning of unborn in today's context and in the context of the use of IVF, Ms Clissman said. IVF had begun before 1983, she added.
If the court was satisfied that fertilisation was the beginning of human life, that was enough to accord the embryo constitutional protection, she said.
The onus of proof was the balance of probabilities and, if the court was satisfied there was a "probability" that human life began at fertilisation, the court should protect it.
Ms Clissman accepted there was no legislation according protection to embryos.
However, she said, some 25 per cent of embryos created through IVF went on to become human beings and Irish citizens and, if the court accepted the State's argument that embryos did not enjoy constitutional protection of their right to life, then those people had no constitutional rights until after implantation.
There was no absolute right not to procreate, Ms Clissman also argued. If a woman was raped and became pregnant, there was no remedy for her unless her own life was at risk and she could not seek an order entitling her to an abortion.
In this case, the man had committed himself to taking part in IVF treatment "and cannot go back", she said. If the life of the unborn started at fertilisation, the rights of the unborn should be superior to any rights of the father in such circumstances.
Asked by Mr Justice McGovern what was her view on a man wishing to have embryos implanted in a woman with a view to her having a child, in circumstances where the woman did not wish that, Ms Clissman said that issue did not arise in this case.
It was very unlikely a woman would go through the very difficult process of IVF and then not wish to conceive, she said. Such issues would not arise and nor would this case had regulations governing IVF been introduced, she added.
The fact there was no regulation had placed her client, and her husband, in this position and perhaps the case might inspire the necessary regulation of the area of IVF, Ms Clissman said.
