The Attorney General has taken the "dramatic" view that documents signed four years ago by the estranged husband of a woman consenting to fertility treatment for his wife mean there can be a subsequent implantation in his wife of any resulting embryos without any new consent from the husband, the High Court was told yesterday.
The AG is effectively saying the husband can never withdraw that "bare consent" given in 2002 "no matter what", irrespective of the couple's separation and the husband's wish to have no more children with his wife, John Rogers SC, for the 44-year-old husband, a father of two, said.
This was a "dramatic" position for the AG to take and it should be rejected by the court on public policy and other grounds, including because the consent documents did not clearly identify the circumstances under which a person could be forced to become a father, he urged.
The law cannot compel a person to be a parent over their objection to being so, he argued.
Counsel was making submissions for the husband who is opposing his wife's action to have three embryos, fertilised with his sperm in 2002 and then frozen, placed in her uterus with a view to having a child or children for which, the woman contends, the man will be legally and financially responsible.
The Attorney General had noted in legal submissions advanced by Brian Murray SC, with Donal O'Donnell SC, that it was the public policy in other states not to force a man to be a father, Mr Rogers said. That policy, counsel argued, was "founded on right thinking, rationality and logic".
In a decision of a US court in a case where such issues arose, that court had concluded that "forced procreation is not an area amenable to judicial enforcement", counsel added. He would adopt the same view.
Mr Rogers said Mr Murray had stated the consent documents signed by the husband and wife in early 2002 at the Sims clinic indicated the husband had consented to a course of treatment in which he acknowledged that he would be the father of any child resulting from that treatment. It was submitted on behalf of the AG the documents were consistent with the husband's consent not being required for the embryos being thereafter placed in the uterus.
That submission ignored a joint consent document signed by the husband and wife for the freezing of the embryos which meant the embryos could not be defrosted without consent of both husband and wife, Mr Rogers said. At the very least, the husband's consent was required to defrosting and anything else to be done was to be decided by the couple.
The court should not ignore the evidence of the husband and wife in the case, Mr Rogers said. The husband had said the point of the IVF treatment in early 2002 was to get a pregnancy and his evidence conveyed a consent to implantation in those circumstances. In her evidence, the wife saw the situation was plainly one where there had been no decision at the time of the IVF treatment in relation to what should happen to the remaining embryos, he added.
Despite this, it seemed Ireland was saying in this case that, where a husband gives a bare consent like this to such a procedure, it was to be a consent from which he cannot withdraw, counsel said. "That cannot be the case," he added. Contingencies, including separation, could arise which provided a basis for a withdrawal of consent.
