Embryo ruling - Case has far-reaching implications

THE High Court’s preliminary ruling in the dispute between an estranged couple over the fate of three frozen embryos may be relatively straightforward but it puts the spotlight on how important it is for such agreements to be copper-fastened.

Given the intense public interest in the outcome of this landmark case, which is far from over, it is commendable that the court will tomorrow begin its examination of the wider constitutional and public policy aspects of law, including the vexed question of when life begins.

Ultimately, it will rule on a range of major questions of constitutional and public law that flow from this complex, emotive and potentially divisive question, issues which go to the heart of the in vitro fertilisation (IVF) debate.

Far-reaching legal, moral, social and political repercussions will flow from judicial decisions on the more difficult concepts of law. Thus, it was eminently sensible of Mr Justice Brian McGovern to first decide the dispute between a woman and her former husband over the fate of frozen embryos.

That does not in any sense minimise the importance of yesterday’s preliminary verdict. In the event, the judge found there had been no agreement, either expressed or implied, between the couple on what to do with three surplus frozen embryos following successful IVF treatment, leading to the birth of a baby girl in October 2002. Since then the marriage has broken down.

By ruling that the 44-year-old man never gave implied consent to the later implantation of the leftover frozen embryos, the court has effectively barred the 41-year-old woman from having the embryos thawed and implanted in her womb.

In the course of the four-day court hearing, she said she regarded the embryos as “our children” and held that husband was the father of any child or children resulting from an implantation. Significantly, she also expected him to assume responsibility, including financial responsibility, for those children.

In his verdict, the judge was rightly critical of the fact that the relevant documents did not set out what was to happen in the event of a change of circumstances in the marriage. And in a clear warning to other couples contemplating the use of IVF treatment, he found the consent forms were vague and failed to cover possible contingencies which could arise.

Looking at the broader canvas, when the dust has finally settled in this watershed case the Government will inevitably come under intense pressure to establish a regulatory authority to oversee the whole area of IVF and related matters in Ireland.

In marked contrast with the scenario in Britain, where a regulatory agency was established in 1990 with powers extending not only to IVF but also to surrogacy and the use of spare embryos for research purposes, here in Ireland the whole area of assisted human reproduction, of which IVF forms a crucial part, remains unregulated.

One way or another, the outcome of the High Court case will have a profound bearing on the argument for similar legislation here. It is one of the key recommendations from the Commission on Assisted Human Reproduction which issued its report last year, five years after being set up by the Minister for Health.

However, to date not one of its 40 recommendations has been implemented. And not for the first time, it is left to the courts to hand down a ruling on a question which will have crucial legal, moral and political repercussions and which the Government has put on the long finger.