Judge says failure to enact fertility laws ‘extraordinary’

A SUPREME Court judge has described as “extraordinary” the failure of Government to take any steps at all to enact laws to regulate fertility treatment here.

There has been no Green paper, White paper or discussion documents relating to regulating fertility control, Mr Justice Hugh Geoghegan said yesterday — “extraordinary.”

It would be “highly desirable” for these matters to be addressed in legislation, he added.

Gerard Hogan SC said that in 2005, the Commission on Assisted Human Reproduction had recommended fertility treatment should be regulated by laws similar to those in Britain, where consent to storage of embryos may be varied or withdrawn at any time, but “nothing happened”.

The commission by an 8-1 majority also said an embryo should only attract the legal protection provided to an “unborn” under Article 40.3.3 (the 1983 anti-abortion amendment) of the Constitution when it is actually implanted in a woman.

The exchanges occurred in the appeal by a separated mother of two against the High Court’s refusal to order a Dublin clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The embryos were created after IVF treatment undertaken by the now 43-year-old woman and her husband in early 2002 and are stored at the Sims fertility clinic, in Rathgar, Dublin.

The couple had one child in 1997 conceived naturally and their second child was born in October 2002 as a result of the treatment. Six viable embryos were created, three were implanted in the woman and the remaining three are frozen. The couple separated in 2002.

The woman claims she is entitled to have the remaining embryos implanted on foot of consents signed by her husband in 2002 relating to the fertility treatment and also, the state’s obligation under Article 40.3.3 to protect and vindicate the right to life of the unborn.

She contends an embryo is an “unborn” within the meaning of the article because, she claims, human life begins from conception, when an egg is fertilised.

In opening arguments on Monday, counsel for the man John Rogers said they had made an initial agreement to find a means of procreation via IVF but this was never intended to be an enforceable legal agreement.

Mr Hogan, for the woman, yesterday argued the court should decide what is the meaning of “unborn” within Article 40.3.3 and whether it includes embryos in vitro. There is unborn human life within the article once there is conception, he argued. Article 40.3.3. was “in favour of life” and, in voting for it, the people “desired to protect the value of unborn life.”

The state in its submissions said the embryo was “worthy of respect” but did not say what that meant in the context of this case, he added. The state was “skirting” the issue of the legal status of the embryo.

The appeal continues today.