Constitutional referendum looms if State backs fertility report

A CONSTITUTIONAL referendum on the rights of the unborn child may be required if the Government implements key recommendations from the Commission on Assisted Human Reproduction.

The commission, set up five years ago, yesterday published its long-awaited report on how the Government should approach the regulation of all forms of fertility treatment, including artificial insemination, IVF treatments, surrogacy, cloning, as well as embryo and stem cell research.

At present there is no legislation governing these practices in Ireland.

Several of the 40 recommendations made by the commission will evoke controversy, and were the subject of minority dissent among its 21 members.

It strongly accepted that the overwhelming weight of opinion in Ireland regards assisted human reproduction and infertility treatment as “acceptable from an ethical point of view”.

Among the more contentious recommendations is that embryo and stem cell research (using excess embryos generated during IVF treatment) be permissible, but “for specific purposes only and under stringently controlled conditions”.

The other major recommendation of the commission that will prove divisive is its majority finding that surrogacy be permitted.

The question of how excess embryos generated through IVF treatment should be treated may cause constitutional difficulties.

The recommendation that embryo and stem cell research be allowed is predicated on its finding that the embryo formed by IVF does “not attract legal protection until placed in the human body” and not in the period after fertilisation has taken place.

The commission accepts that this finding could potentially fall foul of Article 40.3.3 of the Constitution which affords rights to the unborn. The meaning of the word “unborn” in 40.3.3. is “uncertain”, states the report.

It goes on to say that the possibility cannot be ruled out that the right of the unborn exists before the embryo is placed in the womb.

Clarification of the legal status of the pre-implanted embryo, the commission accepts, can be obtained only by a legal challenge to the Supreme Court or by a constitutional referendum.

In his first public reaction last night, Archbishop of Dublin Diarmuid Martin claimed many of the proposals were at odds with Catholic teaching.