Frozen embryos ‘have no legal status unless implanted’

AN EMBRYO created as a result of fertility treatment has no legal status here and is not entitled to constitutional protection unless implanted in a woman’s womb and may be legally destroyed prior to any such implantation, lawyers for the state have told the Supreme Court.

Donal O’Donnell SC, for the Attorney General, said an embryo is not an “unborn” within the meaning of article 40.3.3, the anti-abortion amendment to the constitution. He said because of this and the absence of fertility treatment regulation, an embryo has no status under Irish law.

As such, people who undergo fertility treatment resulting in embryos are entitled to decide what happens to them, he said.

The state’s position is that embryos are unregulated by law or the constitution and there is no relevant public policy in relation to them, Mr O’Donnell said.

He was not saying they were “nothing” but that they have no legal status.

The issue of protection of embryos was not decided in 1983 — when the anti-abortion amendment was passed — and remains to be decided, counsel said.

Mr Justice Adrian Hardiman said counsel’s comments represented “the clearest statement since 1983” of the state’s position concerning the scope of article 40.3.3. The judge said people may only vote on embryos if the legislature put proposals before them but the legislature had “maintained total silence”.

In reply to Mr Justice Hugh Geoghegan, Mr O’Donnell agreed regulations relating to fertility treatment could be enacted without a referendum. He said the 2005 Commission on Assisted Human Reproduction had recommended regulation.

Mr O’Donnell said the state believes the court is entitled, if it considers an estranged couple had an agreement regarding the embryos, to enforce that agreement.

Counsel was making opening submissions on the third day of the appeal before the Supreme Court by a woman against the High Court’s refusal to order a Dublin clinic to release three frozen embryos to her for the purpose of pregnancy against her estranged husband’s wishes.

The appeal hearing has been adjourned to resume later this month on a date yet to be fixed.