Family & Life

Court Declares Embryos are not ‘Unborn’ as Defined under Irish Constitution : 24th Nov 06

Concern over Court Decision on Right to Life of Human Embryo—Constitutional Right to Life Needs to be Vindicated

Judge in Embryos Case— "It seems to me that in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence." p.23. "It is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro." p.26. —Judgement of Mr. Justice McGovern in Roche v Roche Delivered on the 15th Day of November 2006.

A woman has lost a High Court battle to decide the Constitutional status of three frozen embyos stored in the Sims Fertility Clinic, Rathgar, Dublin. The woman claimed the embryos, created using in vitro fertilisation technology, should have been afforded the protection given to the unborn under the Constitution.

However, the High Court decided on Wednesday that the three frozen embryos are not “unborn” as defined under the Constitution and it is a matter for the Oireachtas (Houses of Parliament) to decide on their legal status. Article 40.3.3 of the Irish Constitution states acknowledges the right to life of the unborn “with due regard to the equal right to life of the mother”.

But in a 26-page High Court ruling delivered on Wednesday Mr Justice Brian McGovern said that three frozen embryos are “not 'unborn' with the meaning of Article 40.3.3 and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro”. “Until the law or the Constitution is changed, this issue remains within the sphere of ethics and morality”, he said. The Irish Times. November 15. END.

Court Concludes Embryos are not 'Unborn' within the Meaning of Article 40.3.3 of the Irish Constitution

The woman in the embryos case was seeking to have the embryos returned to her and implanted in her womb with a view to pregnancy, arguing that the protection offered in the Constitution to the unborn child included embryos.

However, the High Court concluded that the three frozen embryos are not unborn within the meaning of the Constitution. Mr Justice Brian McGovern said that 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.

The judge also said it was not possible for the court to decide when unborn life begins - that was not necessary to resolve the issues in this case. RTE. November 15. END.

The High Court's ruling on the fate of three frozen embryos being stored at a Dublin fertility clinic has prompted strong reaction. Mr Justice Brian McGovern ruled that the embryos do not have a right to life. The Pro-Life Campaign has issued a statement saying it is disappointed with the decision.

The statement says the suggestion that an embryo should only enjoy protection when implanted in a woman's womb is arbitrary and ignores the fact that everyone begins life as an embryo.The PLC says it is confident the Supreme Court will vindicate the rights of the human embryo if the judgement is appealed.The Irish Independent. November 15. END.

The Pro-Life Campaign said it was disappointed at the decision and called for legislation to protect the embryo. Its spokesman Dr Berry Kiely said there was "no doubt" the human embryo was alive and unborn.

The Embryo is Human Life With Potential

"The embryo is not potential human life - it is human life with potential, albeit fragile and dependent. The suggestion that an embryo should only enjoy protection rights when implanted in a woman's womb is arbitrary and ignores the fact that each of us began life as a human embryo", Dr Kiely said. A lack of clarity on the right to life undermined the basis for other cherished rights, she added.

She pointed out: "There is nothing to stop such legislation being brought forward. It will, however, require political leadership. Even countries that permit abortion, like Italy and Germany, have laws protecting the human embryo, for example, from destructive experimentation."

Archbishop Says Judgement Appears to Cast Doubt on Level of Protection Irish Constitution Affords the Unborn

Archbishop of Dublin Dr Diarmuid Martin expressed serious concerns about the judgment, saying it appeared to cast doubt on the level of protection which the Constitution afforded to human life at its earliest stages.

He expressed the hope that this issue would receive "full consideration" in any eventual appeal to the Supreme Court and that the protection of human life at all stages of its development would be vindicated.

Dr Martin said it was the clear teaching of the Catholic Church that "human life must be respected and protected absolutely from the moment of conception. From the first moment of his or her existence, a human being must be recognised as having the rights of a person."

He said the decision was in line with majority thinking in the medical profession and would help doctors in their work, "but the sooner we get legislation in this area the better. We need a governing body that will protect everyone."

Expressing her dismay, MEP Kathy Sinnott claimed the decision was "the first step Ireland takes on the slippery slope to denying a right to life to a class of human beings". It was disingenuous and tragic for the court to say it could not know when human life began.

'Existence of embryos outside womb 'precarious''—Judge Expresses Concern in Embryos Case

The absence of any rules or regulations governing IVF treatment in Ireland means that embryos outside the womb "have a very precarious existence", Mr Justice Brian McGovern warned in his judgment.

While it was a matter for the Oireachtas to decide whether to implement the recommendations of the Commission on Assisted Human Reproduction, the courts were, in the meantime, being asked to deal with "a complex dispute involving social issues which should be governed by a regulatory regime established by an Act of the Oireachtas".

He said the Government in 2002 established the Commission on Assisted Human Reproduction to make recommendations in the area of IVF. Its first unanimous recommendation was that a regulatory body should be established here to regulate assisted human reproduction facilities. A majority had also recommended that the embryo formed by IVF should not attract legal protection until placed in the woman, he said.

Earlier, he said that as the three frozen embryos were not unborn within the meaning of Article 40.3.3, an issue arose as to what, if any protection, could be afforded to them. While there was considerable disagreement over whether embryos constituted viable human life prior to implantation, all agreed they deserved respect, he said.

However, while the Medical Council had guidelines prohibiting the deliberate destruction of in vitro embryos, those ethical guidelines did not have legal effect and only offered limited protection.

The fact that something was not prohibited by law did not mean it was morally acceptable to carry out that act. "If the law is to enforce morality, then whose morality does it enforce?" he asked. Laws should and generally did reflect society's values, but it was the duty of the courts to apply the law, not morality.

IVF treatment was governed in many countries by rules and regulations, the judge noted. "It seems to me the absence of any rules or regulations in this jurisdiction means embryos outside the womb have a very precarious existence."

He considered it most unlikely the woman and her husband would agree on what would happen to the embryos. That meant they were likely to remain in frozen storage indefinitely.The Irish Times. November 16.

Decision Time for Embryos and the Irish Constitution—Right to Life of Unborn Embryos Must be Vindicated

The central issue under consideration in the current case is whether embryos frozen as part of an in vitro fertilisation (IVF) procedure can be considered "unborn", as defined in Article 40.3.3 of the Constitution. This could bestow on them a number of personal rights, again as defined in the Constitution, possibly including the right to be returned to their mother and her uterus.

The Article recognising the right to life of the unborn was inserted in the Constitution in 1983, following a referendum. However, no definition of unborn was given.

The first "test-tube baby" born after IVF treatment arrived in Britain in 1978, but this procedure was not available in Ireland at the time of the Referendum. The first Irish test-tube baby was delivered in 1987.

In the current case, Mr Justice Brian McGovern has ruled that Article 40.3.3 was inserted in the Constitution to make secure the prohibition on abortion and its meaning was not intended to include embryos in vitro.

In his judgment, Mr Justice McGovern said it was not possible for the court to decide the question of when life begins, and that the point at which people used the term "human being" depended on issues other than science and medicine. This was a matter for the Oireachtas or, if a referendum was put to them, the people to decide.The Irish Times. November 16.

Judge Says that a Constitutional Amendment May be Necessary—Right-to-life Referendum a Prospect after Embryo Ruling

A right-to-life referendum could be a possibility after the High Court ruling found embryos not yet implanted in the womb did not enjoy the constitutional protections afforded the unborn. The embryos are stuck in limbo and are likely to continue to be frozen indefinitely, as there is no law to say whether they can be destroyed, donated to a couple or used for research.

The Government faced multiple calls for definitive laws on the subject in the wake of the case after the judge highlighted the legislative vacuum.

Mr Justice Brian McGovern said: “The courts are being asked to deal with a complex dispute involving social issues which should be governed by a regulatory regime established by an act of the Oireachtas”.He said a constitutional amendment may be necessary to allow the public decide whether they wanted embryos outside the womb to be included in the definition of the “unborn”.

Article 40.3.3 on the rights of the unborn was included in the Constitution by referendum at the height of the abortion debate in 1983 before advances in IVF technology and Mr Justice McGovern concluded voters only intended it to refer to the baby in the womb.

However, Pro-Life Campaign spokeswoman Dr Berry Kiely disagreed. “The embryo is not potential human life — it is human life. The suggestion that an embryo should only enjoy protection rights when implanted in a woman’s womb is arbitrary and ignores the fact that each of us began life as a human embryo.”

Catholic Archbishop Diarmuid Martin said he had serious concerns. “The decision casts doubt concerning the level of protection which the Constitution affords to human life at its earliest stages.” The Irish Examiner. November 16. END.

Excerpts from Judge's Decision in Embryos Case–p.23/4/6.

"In many countries I.V.F. treatment is governed by strict rules and regulations. It seems to me that in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence.

In the present case I have held that the first named defendant did not give his consent to the transfer of the three frozen embryos into the uterus of the plaintiff. The second named defendant has indicated that it will not release the frozen embryos without the consent of both parties. It is clear that there is no agreement between the plaintiff and the first defendant as to what is to happen to the frozen embryos. It is most unlikely that agreement can be reached on this matter.

That being so the likely fate of the embryos is to remain in a state of cryo-preservation for an indefinite period.

Eventually there will come a time when these embryos cannot be implanted in the plaintiff’s uterus with any hope of success as she is getting older. But that doesn’t appear to be any basis on which the Court can intervene in this matter.

I have considered the arguments made by the first defendant that it would be abhorrent to force him to become a parent against his will. For the plaintiff it is argued that he cannot simply change his mind once he has agreed to his sperm being mixed with the plaintiff’s ova.

Since I have already concluded that these embryos are not “unborn” within the meaning of Article 40.3.3 the issue of whether or not the first defendant, as a matter of law, can be forced to become a parent by the implantation of the embryos in the plaintiff’s uterus does not arise.

Until the law or the Constitution is changed this issue remains within the sphere of ethics and morality.

In closing submissions counsel for the plaintiff accepted that the first defendant could not have paternity imposed on him if the un-implanted embryos are not “unborn” for the purposes of Article 40.3.3.

Having considered the evidence and the submissions in this case and reviewed the law I have come to the conclusion that the three frozen embryos are not “unborn” with the meaning of Article 40.3.3. and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro."

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Court Declares Embryos are not ‘Unborn’ as Defined under Irish Constitution : 24th Nov 06

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