State is stung into regulation of fertility treatment
Mother loses right to use frozen embryos
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Wednesday December 16 2009
NEW laws on assisted human reproduction are being prepared by the Government after pressure intensified on the State to clarify the legal status of frozen embryos.
A separated mother of two lost her legal battle to use frozen embryos against the wishes of her estranged husband.
Describing the State's failure to regulate fertility treatment as serious, urgent and disturbing, the Supreme Court yesterday ruled that the constitutional protection afforded to the 'unborn' only applies after implantation in the womb and does not apply to frozen embryos.
Husband and wife Mary and Thomas Roche (46), who did not reach any agreement as to what would happen to their surplus embryos, must now decide whether to donate or destroy them.
Defence
"I acted as any mother would to defend the interests of my unborn embryos and I trust that the public will understand that I had no alternative but to bring this case," said Mrs Roche (43) in a brief statement yesterday.
There is no indication of when legislation will be passed by the Government following the Supreme Court ruling, which they described as a "significant milestone".
Taoiseach Brian Cowen said the Attorney General was now studying the judgment.
The frozen embryo decision comes days after the Supreme Court ruled that a gay sperm donor was entitled to access to his son, who is being raised by a lesbian couple.
It also follows a landmark abortion case heard last week in the European Court of Human Rights where the Government confirmed that it had no plans to regulate the legal status of the unborn.
Last night the Department of Health and Children said it hoped to bring forward proposals next year on a range of issues surrounding assisted human reproduction -- including legal parentage, IVF, sperm donation and consent.
Health Minister Mary Harney recently briefed the Cabinet on the issues involved in the case.
"The Government fully accepts its responsibility to put proposals to the Oireachtas for the legislation and proposals for the legislation are indeed being prepared," a spokesman said.
Mr Cowen said that it was a highly complex area with "legal, social and ethical" issues.
He said there were 40 recommendations made by the Commission on Assisted Human Reproduction, which reported four years ago, and it was important the Dail and the relevant Oireachtas committee worked together to see where to go.
Mrs Roche had lost a High Court action seeking to have the embryos released claiming they were protected by Article 40.3.3 of the Constitution -- the 1983 anti-abortion amendment covering the 'right to life' of the unborn. She appealed this decision to the Supreme Court which yesterday unanimously dismissed her case in five separate judgments.
The Supreme Court found the embryos were not the "unborn" within the meaning of the anti-abortion amendment and were therefore not entitled to constitutional protection.
The word "unborn" refers to a child within the womb, not pre-implantation embryos, and State protection of embryos arises only after implantation, the court found.
Mr Justice Nial Fennelly said it was disturbing, four years after the Oireachtas received the report of the Commisison on Assisted Human Reproduction, that no legislative proposals had even been formulated.
It appeared the State had no present intention to propose any legislation, he said.
Meanwhile, the Pro-Life Campaign called on the Government to introduce legislation to protect human life at its earliest stages of development.
- Fionnan Sheahan and Dearbhail McDonald
Irish Independent
