Man opposes wife’s bid to have IVF eggs implanted

THE High Court has heard there is no legislation in Ireland governing the legal status of frozen embryos at the centre of a landmark dispute between a woman and her estranged husband.

The woman is fighting for her right to have more children.

The court yesterday began hearing an action taken by a 38-year-old childcare worker who is seeking an order to have three of her fertilised eggs, which were frozen as a result of IVF treatment, implanted in her uterus.

The action is being opposed by her husband, from whom the mother of two is legally separated. He claims he has not given his consent for a Dublin-based IVF clinic to release the embryos to his wife.

The court heard the other named defendants — the Sims fertility clinic in Rathgar and two doctors, Anthony Walsh and David Walsh — will abide by its decision.

Barrister Gerard Hogan, for the woman, said the case presented novel, difficult and momentous issues relating to the question of when human life begins.

He argued the court might have to determine if the woman’s embryos could be defined as “unborn” in relation to article 40.3.3 of the Constitution which protects the right to life of the unborn.

However, lawyers for all parties acknowledged the court must first decide on an issue of “private law” relating to whether the husband had given his consent or not to the release of the embryos.

The court heard the couple married in March 1992 and sought advice on IVF treatment two years later.

In September 1997, the woman gave birth to a baby boy. She later had surgery to remove an ovarian cyst which resulted in her losing two-thirds of her right ovary.

In February 2002, three embryos were implanted in the woman, while a further three fertilised eggs were frozen and stored at the clinic as a result of IVF treatment. She subsequently gave birth to a baby girl in October 2002.

However, Mr Hogan said the couple had begun experiencing marriage difficulties towards the end of the pregnancy when the husband had formed a relationship with another woman.

He moved out of the family home at the end of 2002 but returned later. However, attempts at a reconciliation between the pair failed and he left again in December 2004. The couple were subsequently granted a judicial separation but remain married.

Mr Hogan said both parties signed a consent form on January 29, 2002, to having the woman’s embryos frozen at the Sims clinic.

The current proceedings were initiated by the woman in June 2004 after the husband refused to give his consent to the release of the embryos to his wife who wanted to have more children.

Mr Hogan said the constitutional issue surrounding the status of the embryos was “hovering over” the question of the husband’s consent.

Although British courts had recently ruled in favour of the husband in a similar dispute, Mr Hogan said direct comparisons could not be made as a result of the constitutional protections provided in this country by article 40.3.3.

Although all parties acknowledged there may be no need to hear the wider arguments about the constitutional rights of the fertilised eggs, Mr Hogan argued the consent given by the husband in 2002 was irrevocable as “human life was potentially created”.

Donal O’Donnell, SC for the Attorney General, recommended the court should avoid adjudicating on constitutional matters if the case could be decided on “non-constitutional grounds”.

Otherwise, any ruling could have inevitable consequences for couples seeking IVF treatment and certain types of contraception, warned Mr O’Donnell.

John Rogers, SC for the woman’s husband, said the court must first decide if there was consent by his client and if so, what it was for and whether it could be withdrawn.

The case, which is due to last six days, continues this morning.