Landmark legal action to decide fate of embryos
The case relates to embryos produced during IVF treatment undertaken by a married couple in a private clinic in Dublin some years ago. Six embryos were produced of which three were implanted and a daughter was born as a result three years ago. The remaining three were frozen.
The 38-year-old female plaintiff is seeking orders aimed at having the embryos thawed and implanted in her uterus. However, since the IVF treatment, the marriage has dissolved and the husband has refused to give his consent. The clinic has refused to release the embryos.
Medical law expert Dr Deirdre Madden said the case raises serious constitutional and policy implications in relation to Assisted Human Reproduction (AHR) and the protection of the unborn.
She said this is principally because there is no legislation in Ireland dealing with the many legal issues that arise in IVF or AHR generally, other than recent EU regulations dealing with quality and safety standards. Dr Madden, who lectures in medical law at University College Cork and was a member of the Commission on Assisted Human Reproduction (CAHR), said a number of legal issues arise in this case. “The first is whether, in the absence of legislation, there is a strict necessity for consent to treatment in the context of IVF, and whether this applies both at the time that the embryos are created as well as the date of embryo transfer.
“Another issue is whether a consent form signed in relation to IVF treatment can be binding against one of the partners in the event of a fundamental change in circumstances.
“This raises the question of whether the enforcement of such a contract against a person who does not wish to become a parent in this situation is ethically and legally defensible.”
Dr Madden, pointing out that the current case is the first time a dispute between a separating couple in relation to stored embryos has been the subject of judicial determination in Ireland, said the court may refer to Article 40.3.3 of the Irish Constitution, which acknowledges the right to life of the unborn.
“Unfortunately it is not clear whether and to what extent this word applies to the embryo as it has not yet been interpreted by the Supreme Court in the IVF context,” she said.
In May last year, the CAHR presented a report to the Government containing 40 recommendations including statutory regulation of assisted reproduction.
* A method of assisted reproduction that involves combining an egg, surgically removed from the ovary, with sperm in a laboratory dish. If the egg fertilises, resulting embryos are transferred to the woman’s uterus in the hope pregnancy will follow.
* More eggs are often fertilised during IVF than can be safely used in a single IVF attempt, therefore, a number of embryos are usually frozen and stored for future use.
* In vitro literally means “in glass”, hence the term “test tube baby”.
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