A case on the fate of frozen embryos, currently in a fertility clinic, will be heard in the High Court next month, it was decided yesterday.
The case concerns three frozen embryos produced during IVF treatment undergone by a married couple in the Sims clinic in Dublin. Six embryos were produced, of which three were implanted, and a daughter was born as a result three years ago.
The three remaining embryos were frozen. The parties signed a bilateral agreement requiring the consent of both of them for the embryos to be thawed and implanted.
The marriage broke up shortly afterwards and the couple were judicially separated, according to an affidavit opened to the High Court by the woman's solicitor, Alan Daveron.
In November 2005, the wife sought a statement from the husband that the embryos could be placed in her uterus. This was not forthcoming and the clinic refused to release the embryos to the wife without it.
On December 19th last a number of orders were sought from the High Court against the husband and the directors of the clinic. These included orders directing the clinic to release the embryos, an order directing that the Attorney General be joined to the action, an order that there should be an early trial and an order that the couple should not be identified.
In the affidavit presented to court, Mr Daveron said that "significant constitutional issues" were likely to arise, so he was asking that the Attorney General be joined in the action.
These issues included whether the embryos were the "unborn" afforded constitutional protection in Article 40.3.3 of the Constitution, whether the husband had separate constitutional rights relating to the return of the embryos, and whether the wife was entitled to the return of the embryos, notwithstanding the separation.
A representative of the Chief State Solicitor's office was present at the brief hearing yesterday which dealt with the discovery of documents and the proposed date for the full hearing.
Seeking an early trial of the matter the affidavit said that the plaintiff (the wife) was now 38-years-old and wanted to proceed as soon as possible. She also objected on ethical and other grounds to the destruction of the embryos, which had a "shelf life" of six to seven years.
Seeking a ban on the identification of the plaintiff, the affidavit said that she did not object to the case being heard in open court, without her and her children being identified.
She said she did not want her two children to be the subject of "prurient curiosity" in school and from the media.
It also said she was concerned that intimate details of her private life should not be published.
On behalf of the plaintiff, Gerard Hogan SC said that the case was likely to take three to four days. He said it would be difficult to separate the private and public law aspects, and that all evidence should be heard together.
Mr Justice Clarke said the public law issues raised included matters of public policy, the status of the embryos and whether they had independent constitutional rights. He said he would be happy to hear the case in the first week of next term, and set a date of April 25th.