A landmark legal action by a woman for orders directing the implantation in her womb of three frozen embryos which were fertilised with her estranged husband's sperm four years ago raises "novel and momentous questions", including the question of when human life begins, the High Court has been told.
If the court found the frozen embryos were "unborn" within the meaning of Article 40.3 of the Constitution - the "right to life" amendment passed by referendum in 1983 - then the court must vindicate the right to life of those embryos, Gerard Hogan SC, for the woman, said yesterday.
This would involve the courts defining the meaning of the word "unborn" for the first time, which would have significant implications for assisted reproduction, he said. The 1983 amendment conferred a legal protection for the unborn which was "not simply a foetus" in the third trimester of pregnancy but went back to the time "when life begins, or most likely begins, namely fertilisation".
Mr Hogan said another issue concerned the proprietorial rights of married couples in relation to frozen embryos. He was contending there was an "irrevocable" consent from the husband in 2002 for the process and also that the only consent needed for the actual transfer of the fertilised eggs into the woman's uterus was from the woman herself.
While married couples did have autonomy in the area of procreation, those rights were superseded in this situation where a fertilised ovum was the "unborn", he added. Nor could the fact the woman had two children already have a bearing on the case as this was "about principles and not numbers".
Mr Hogan was opening proceedings by the woman (41) against her husband, two doctors and Sims Clinic Ltd in Rathgar, Dublin, where the three frozen embryos are stored. The Attorney General is a notice party for the purpose of dealing with the constitutional issues raised.
The husband denies the woman's claims, while the medical defendants have agreed to abide by any order made by the court.
The issue of whether the unborn requires separate representation has been deferred to a later stage of the proceedings and is dependent on the court deciding that an embryo has constitutional rights. The court will first of all decide whether there was a binding contract between the husband and wife requiring implantation of the embryos.
The case, being heard by Mr Justice Brian McGovern and listed to run for six days, relates to three embryos produced during IVF treatment undertaken by the woman and her husband at the Sims Clinic in early 2002. Nine embryos were produced, of which six were implanted, and a daughter was born three years ago. The couple also have a son who was conceived naturally in 1997. The remaining three embryos were frozen and the woman wants those implanted. She contends that her husband had given consent for the freezing of the embryos and their subsequent implantation in her uterus and that he cannot now, following the break-up of their marriage, veto that implantation.
In the absence of any relevant legislation, the husband must be deemed to have been aware that when he gave a written consent for IVF treatment in early 2002 and when he provided sperm to fertilise his wife's eggs, he had given a consent for a potential or actual human life which was "irrevocable", Mr Hogan submitted.
There was no legislation which provided for the withdrawal of such consent up to the moment of implantation, he said. Medical ethics here regarded the deliberate destruction of a fertilised ovum as medical misconduct.
There was, at the very least, the potential for human life. An embryo had "a certain medical and legal sanction which must be respected". In approving Article 40.3 in 1983, the Irish people had rejected trends in the US and elsewhere whereby abortion was becoming prevalent, he argued.
He said a recent decision of the European Court of Human Rights rejecting a similar bid by a woman to have frozen embryos implanted, despite opposition from her former partner, was made in a different context.
In that decision - the Evans case - the couple were not married, there was a different statutory regime in the UK which involved an ability to withdraw, before implantation, any consent given and there was no constitutional protection for the unborn.
In this case, there was no evidence the woman was ever told the agreement with her husband could not be enforced if the couple separated .
