Rights of the embryo - Legal status must be put beyond doubt

FAR reaching implications of a legislative, religious, moral and social nature flow from yesterday’s High Court finding that the protection offered in the Constitution to the unborn does not extend to embryos outside the womb.

Effectively, the court’s decision leaves a glaring question mark hanging over the imponderable question of when human life begins. Not for the first time, the onus for decision-making has been thrown into the lap of politicians who have been reluctant to grasp the nettle up to now.

In his landmark ruling, which may yet be appealed to the Supreme Court, Mr Justice Brian McGovern said it had never been in the minds of people voting on the 1983 Constitutional Amendments on Article 40.3.3 that the unborn meant anything other than the foetus in the womb.

Pointing to the deep political, social and religious implications of this complex case, Justice McGovern concluded that it was not up to the courts to decide when life begins. The decision, he said, would ultimately be a matter for the Oireachtas and the people in a future referendum.

Competing religious or moral beliefs will stoke the fires of debate. But with a general election looming, it remains to be seen if this Government has the stomach for debate on issues which divided public opinion in the past. Up to now the Coalition has been notoriously slow about bringing in legislation to clear up public confusion.

Clearly, the implications of this case go far beyond the two people at its centre, a mother of two and her estranged husband who were in court for yesterday’s verdict. In an earlier finding, the High Court found there was no agreement between the woman and her ex-husband to have the stored embryos returned to her.

The final outcome has also gone against the mother, who had sought to have three frozen embryos returned to her and implanted in her womb with a view to pregnancy. She argued that embryos constituted the unborn and were therefore protected by law.

However, the article in the Constitution has always been linked to abortion. The judge has made clear that the word ‘unborn’ in the Constitution meant the foetus in the womb. There is no evidence to suggest that people intended ‘unborn’ to refer to embryos.

Effectively, the High Court has concluded that the three frozen embryos are not unborn within the meaning of the Constitution.

The lack of legislation to cover the issues raised by this case is a compelling reason for putting the legal status of an embryo beyond doubt.

Under the law as it stands, an embryo only gains constitutional protection on implantation in the foetus. The key question to be answered, is whether the constitutional protection afforded to the unborn should also apply to an embryo created by in vitro fertilisation and held in storage.

If the Irish people wish to extend that level of protection to embryos in laboratories, a new referendum will be required to insert the relevant wording into the Constitution. Arguably, such a proposition could be included in the referendum promised by the Taoiseach on the rights of the child.

Otherwise, with nine clinics now offering in vitro fertilisation in the Republic, other families could find themselves in a similar quandary regarding the status of the embryo and having to grapple with thorny legal questions concerning the protection of stored embryos.

The Joint Oireachtas Committee on Health and Children should come forward swiftly with detailed recommendations as a basis for new legislation. There is urgent need for clarification on the vexed question of the unborn to be resolved one way or another.