Fertility treatment law likely to face delay

Legislation to govern human fertility treatments is unlikely to be introduced before the next election, notwithstanding yesterday's landmark judgment by the High Court that frozen embryos do not have the same constitutional right to life as those carried in the womb.

While the Department of Health is preparing legislation to regulate clinics offering in-vitro fertilisation (IVF), there is little appetite in Government circles to introduce a controversial issue to the election campaign. Also, there are no plans as yet to create a legal definition for the status of frozen embryos.

In ruling against a woman who sought to have frozen embryos implanted in her without the consent of her estranged husband, Mr Justice Brian McGovern said it was not for the courts to decide whether the word "unborn" should include embryos produced by IVF. This was a matter for the Oireachtas or the people, if a referendum was put before them, he said.

"I have therefore come to the conclusion that the word unborn within Article 40.3.3 does not include embryos in vitro and therefore does not include the three frozen embryos which are at the heart of the dispute."

Article 40.3.3, the right-to-life amendment inserted in the Constitution in 1983, does not provide any definition of the unborn. IVF was developed six years earlier in Britain but no such treatments had been carried out in Ireland at the time of a referendum on the issue.

Ten years ago a constitutional review committee called for a definition of when the unborn would gain legal protection. In 2005, a Government-appointed commission recommended that assisted human reproduction services offered by nine clinics in Ireland be regulated. However, no action has been taken since either recommendation.

"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," Mr Justice McGovern noted. Lawyers for the mother of two at the centre of the case expressed disappointment at the decision and said they would announce next week whether it would be appealed to the Supreme Court.

Archbishop of Dublin Dr Diarmuid Martin said the ruling raised "serious concerns" about the level of protection afforded to human life under the Constitution.

"Human life must be respected and protected absolutely from the moment of conception," he said.

The Pro-Life Campaign said it was disappointed with the court's decision and called for legislation to protect the human embryo

Yesterday's judgment means spare embryos created after the IVF treatment undertaken by the woman and her husband in 2002 will remain in frozen storage at the Sims Fertility Clinic in Dublin for an as yet undefined period.