By Claire O’Sullivan
Wednesday, December 16, 2009
THE GOVERNMENT is under mounting pressure to finally enact legislation on assisted human reproduction after a landmark Supreme Court ruling relating to frozen embryos stated life for the "unborn" only begins when a foetus or a fertilised egg is implanted in the womb.
In a unanimous ruling, the five judges of the Supreme Court also stated that regulation on assisted human reproduction was a matter for the Oireachtas and not the judiciary.
In the ruling the Supreme Court found that frozen embryos do not have an automatic right to life and as a result are not afforded the legal protection guaranteed by article 40.3.3 of the Constitution.
Up to 1,500 children are born each year in this country following IVF treatment.
The judgments followed an appeal of a High Court decision by a separated mother-of-two from south Dublin, who was seeking to use frozen embryos against the wishes of her estranged husband.
The embryos were created in early 2002 when the couple underwent care at the Sims clinic, Rathgar, Dublin.
Dismissing the appeal, the Supreme Court also judged no agreement had been made between Thomas and Mary Roche for her to be implanted with three unused embryos in a second course of fertility treatment.
In his judgment, Mr Justice Adrian Hardiman said: "There has been a marked reluctance on the part of the legislature actually to legislate on these issues.
"The court simply draws attention to this. That is all it can do. That is what Mr Justice McCarthy did, apparently in vain, in the X case 18 years ago. But the court does so as seriously and as urgently as it can. The issue is all the more urgent because, of course, scientific developments in the area of embryology and the culturing of stem cells will not stand still."
Mr Justice Nial Fennelly said it was disturbing that four years after the Oireachtas received the Report of the Commission on Assisted Human Reproduction, no legislative proposals had been formulated and it appeared the state has no immediate intention to propose any legislation.
Last night, 43-year-old Ms Roche said she respected the Supreme Court’s decision: "I acted as any mother would do 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."
Fine Gael spokesman on children Alan Shatter last night said it was "absolutely scandalous" that the Government has failed to bring the necessary legislation before the Oireachtas.
"The Government’s abdication of its legislative responsibility in this area for over a decade has left the judiciary in the most unenviable of positions of not only having to fulfil their judicial duties but also of having to decide on matters of sensitive social policy. This is an area which has been subject to such legislation in the vast majority of European Union countries," he said.
Last week, the court ruled that a man who donated his sperm to a lesbian couple should have access to the child he fathered.
A spokesman for Health Minister Mary Harney last night said an update on the progress of legislation was brought to Cabinet in recent weeks.
Draft legislation is expected at some point next year: "The legislation is being prepared. It is extremely complex from a medical, ethical, social and legal perspective and there is a need to have political consensus."
This story appeared in the printed version of the Irish Examiner Wednesday, December 16, 2009