Frozen embryo legal battle may clarify where protection of life begins

IRISH infertility experts are hoping that a legal battle over the custody of human embryos will also clarify where Constitutional protection to the unborn begins.

The woman taking the action is seeking a High Court order so she can use frozen embryos fertilised by her ex-husband’s sperm. Because the case is more than a private dispute between the parties, the Attorney General (AG), Rory Brady, has joined the proceedings.

The woman’s legal team is expected to argue that her ex-husband agreed to the embryos being created with a view to them one day becoming his children.

The man’s legal team, however, is expected to argue that he has the right to withdraw his consent for the use of the three embryos now that the couple’s marriage has broken down.

The frozen embryos at the centre of the legal battle are stored at the SIMS Clinic where the couple were patients.

Ethical guidelines laid down by the Medical Council state that any embryos must be used for normal implantation and must not be deliberately destroyed.

Earlier this month the European Court of Justice ruled against a British women using frozen embryos to make a baby because her former partner had withdrawn his consent to use them after they split up.

After exhausting the British legal process her lawyers had asked the Strasbourg court to consider whether the British law, under which the six embryos would be destroyed in October this year was in breach of her human rights.

Mary O’Toole SC, an expert in family law, said that while the outcome of the Irish case could be the same as the British one, the legal process involved in getting to the same decision could be different.

She pointed out that Britain already had very detailed legislation governing the situation.

Ms Evans, who had suffered from ovarian cancer, had argued that the legislation was too restrictive.

Ms O’Toole said she also believed that it would be impossible for the Irish courts to deal with the case without considering whether or not the embryo itself has rights.

“It is really up to the court to decide what the definition of an unborn is,” she pointed out.

And, she said, it would be up to the Supreme Court to decide at what stage the unborn was afforded constitutional protection.

The Commission on Human Reproduction accept that clarification of the legal status of the pre-implanted embryo can only be got by a legal challenge or by a constitutional referendum. The commission’s report published last May recommended that an embryo should receive legal protection only after implantation in a woman’s womb.

While the Oireachtas Committee on Health now supports the commission’s call for a regulatory body for fertility, members found they were unable to advise the Government on the legal status of the unborn.

The Pro-Life Campaign believes the commission’s recommendation as to where human life begins would lead to the “wholesale destruction” of human life at its earliest stage of development.

However, one fertility expert warned that giving the embryo the same right to life as an implanted foetus would end in-vitro fertilisation treatment (IVF) in Ireland.

Consultant gynaecologist and obstetrician, Dr David Walsh, a medical partner at the SIMS fertility clinic in Dublin, said freezing embryos gave a woman a very realistic chance of becoming pregnant. “It is the key in the lock of successful IVF,” he said.