Antony Blackburn-Starza
Progress Educational Trust
22 November 2006
 [BioNews, London]
The Irish High Court has ruled that frozen embryos are not covered under the 1983 constitutional abortion amendment (Article 40.3.3) protecting the right to life of 'the unborn'. The ruling comes as the second part of the court's previous decision forbidding Mary Roche from implanting her embryos - which had been frozen after IVF- after her husband had withdrawn his consent upon the couple's separation. The court was then asked to decide whether not implanting the embryos was unconstitutional and that not implanting them violated their right to life - if they came under the definition of the 'unborn'.
Mr Justice Brian McGovern held that the definition of 'unborn' refers to a fetus or a fertilised egg implanted in the womb and does not extend to embryos. He said that, 'at the end of the day, it is the duty of the courts to implement and apply the law, not morality'. He added that 'it is a matter for the Oireachtas [the Irish Parliament] to decide what steps should be taken to establish the legal status of embryos.'
The Irish Labour Party, currently in opposition, welcomed Mr Justice McGovern's decision but called on the Government to enact legislation governing assisted reproduction. 'It is very important that this decision has been made and that we now have some clarity on the issue. It's up to the Government to produce the legislation, on licensing and regulating fertility clinics, that they promised', said Labour's health spokeswomen, Liz McManus, adding 'it is important, for patient safety, to have legislation? Hopefully this court decision will open the way to providing the necessary safeguards'. However, any proposed legislation will not necessarily be permissive. Dr Berry Kiely, of the Pro-Life Campaign, stated, 'Separate entirely from the present case, there is need for legislation to protect the human embryo. There is nothing to stop such legislation being brought forward'.
Although nine clinics are legally allowed to conduct IVF using private funding, there is currently no assisted reproduction legislation in Ireland and the clinics are governed by ethical codes of practice issued by the Irish Medical Council. In May 2005, the Commission on Assisted Human Reproduction (CAHR) called for the establishment of a new authority to regulate assisted reproduction. The report recommended that egg, sperm and embryo donation, as well as surrogacy arrangements, should all be permitted, while human reproductive cloning should be banned. The report also said that fertility treatments should be available to unmarried parents, including lesbian couples, as long as the welfare of the potential child is taken into account by clinicians when deciding whether to provide prospective parents with treatment. It also recommended that some forms of embryo research be permitted, under licence.
The Government decided to refer the report to the Oireachtas Joint Committee on Health and Children. Mary Harney, Minister for Health and Children, said that this was 'intended to allow for further consideration of the complex issues involved and the committee's report, along with the report of the commission, will help to inform future policy in this area'. She said that she has already instructed the Department of Health to make preparations for legislation. Some commentators have argued that such is the political sensitivity surrounding the unborn, any new legislation may be unlikely to be proposed before the next election and there may be a possible referendum on the issue in the near future. However, Irish Tanaiste, Michael McDowell, has denied any political reluctance to deal with regulating assisted reproduction and said that legislation will be proposed before the Irish Parliament during the current session and will be debated early next year.
The Archbishop of Dublin, Diarmuid Martin, has expressed concerns over the High Court ruling. 'The decision casts doubt concerning the level of protection which the Constitution affords to human life at its earliest stages', he said, adding that he hopes an appeal to the Supreme Court will be granted. The Church's position is that all embryos should be protected from the moment of conception. The Pro-Life Campaign came out strongly against the decision saying, 'Whenever the law lacks clarity regarding the most basic right, namely the right to life, it undermines the basis for all other self-evident rights we cherish.' They are confident that an appeal will be granted and the Supreme Court will overturn the High Court decision.
As it stands, Mrs Roche's frozen embryos will be stored indefinitely as there is no law to say whether they may be destroyed, donated, or used for research.
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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.
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