The human embryo should be protected as a human being, and never treated as a means to an end, according to a dissenting view within the Commission.
Gerry Whyte, an expert in constitutional law in Trinity College, dissented from the majority's view on the status of the human embryo created in vitro, and prior to its implantation in a woman's womb. He stressed he supported the other recommendations of the Commission.
He said that the crucial question here was when legal protection should attach to human life. The fact that an embryo was human life was not in question, he said.
It was necessary to define the beginning of human life as the point of fertilisation, he said.
Otherwise human life was defined at some other point in the development of the embryo, there was no consensus on where that point lay, and a decision became arbitrary. "I do not accept that the right to life, which is the prerequisite for the enjoyment of all rights, should be restricted in an arbitrary manner.
"The embryo is more than simply a cluster of cells or matter for, once destroyed, it is impossible to recreate that particular life with its unique genetic programme and its unique, ever-developing relationship with the rest of humanity."
He said he did not object to the non-transference into the womb of embryos identified as likely to miscarry, which should be allowed to die naturally. He also did not object to the freezing of embryos, provided that did not entail the production of surplus embryos, and their subsequent use for research, or their destruction.
Christine O'Rourke, who represented the Attorney General's office on the Commission, dissented from the majority view that surrogate motherhood should be permitted.
She said that the risks of exploitation and commodification of women and children involved in the process outweighed its benefits in permitting certain couples to have a child.
However, she said the prohibition on surrogacy should be directed at agencies offering it, rather than the woman or couple involved.
There were particular difficulties surrounding the enforceability of surrogacy contracts where the agreement breaks down, she said, adding that there was no jurisdiction in the EU where such a contract was enforceable against the surrogate mother.
Yet the Commission recommended that the commissioning parents in such an arrangement should be presumed to be the child's parents. This meant a surrogate mother who regretted her decision would have to initiate legal proceedings to negate the presumption. "Where a surrogate mother formed an attachment to a child she was carrying and wished to keep it, she would nevertheless be forced to relinquish the child to the commissioning couple. Reasonable force could be used to effect the removal."
It was doubtful a legal regime that permitted this would be constitutional, she said, pointing out that in our system of adoption a mother may not consent to adoption before the birth of the child.
"This is a proposition that is firmly grounded in the emotional reality of pregnancy, labour and childbirth. It seems unlikely that the court would countenance the compulsory removal of a newborn infant, without legal process and backed up by threat of force, from the woman who has undergone pregnancy and childbirth, with their attendant risks and discomfort, in order to bring it into the world."