Man wins right to stop estranged wife using embryos

A man won the right today to prevent his estranged wife from using their frozen embryos to have another child.

In a preliminary ruling, the High Court found the 44-year-old Dublin man had not given his consent for her to use three embryos left over after the couple underwent IVF treatment.

Mr Justice Brian McGovern found the husband only agreed to have them implanted in 2002.

“I hold that there was no agreement either expressed or implied as to what was to be done with the frozen embryos in the circumstances that have arisen,” he told the court.

“And I further hold that the first named defendant [husband] has not entered into an agreement which requires him to give his consent to the implantation of the three frozen embryos in the plaintiff’s [wife] uterus.”

The judge said the consent forms signed by the couple as they underwent IVF treatment in Sims Clinic Rathgar, Dublin, in January 2002 gave no agreement on future use.

The groundbreaking case involved a couple who separated in 2002 after using three of six embryos produced at the Sims clinic.

Now 41, the woman wants more children but has been told by maagement at the clinic the embryos cannot be implanted in her uterus without her ex-husband’s consent.

He insisted in the High Court it was his basic human right not to be forced to father another child with a woman from whom he had separated.

The couple met in the mid-1980s and married in March 1992. They had a son five years later and shortly after his birth the woman underwent surgery for an ovarian cyst. Two thirds of her right ovary was removed.

In July 2001 the couple was referred for IVF and the following year both parties gave their consent for treatment. In November 2002 they had a baby girl, but towards the end of the pregnancy marital difficulties arose, with the husband having an affair.

They separated and reconciled before the marriage ended in December 2002.

The woman claimed her ex-husband agreed to the embryos being created in the first place, with a view to them one day becoming his children, but he cites the right to withdraw his consent for the use of the three embryos now that the marriage has broken down.

The landmark case is dealing with separate areas of Irish law, the consent issue and more complex issues of public and constitutional law issues.

Hearings on the second matters are due to begin on Thursday.

Mr Justice McGovern said the public and constitutional issues must be heard together.

The judge told the court a number of questions arise as a result of this case, such as whether embryos are unborn and whether a person can be forced to become a parent against their will.

It is likely the question of when life begins will also be debated.

The judge’s final ruling is also set to challenge a constitutional amendment in 1983 protecting the unborn. The woman’s legal team will argue the embryos are covered by Article 40.3.3, which protects the rights of the unborn.