The Irish Frozen Embryos Case

Patrick Carr

Critique of the Judgement delivered by Mr. Justice Brian McGovern, in the Case of M.R. v. T.R. and Others in the High Court, Dublin [2004 No.9792 P.] on 15th
November, 2006

Mr Justice Brian McGovern had an unenviable task in deciding the recent case brought by a woman seeking to have her frozen embryos implanted in her womb against the wishes of her estranged husband.  It required him to consider questions which have never before been decided by an Irish court relating to matters for which successive governments have negligently declined to legislate.  The judge rightly resisted making new law, but his efforts to interpret the existing law have created a glaring lacuna in the protection of human life afforded by Bunreacht na hEireann, the Constitution of Ireland.

The fundamental flaw in Justice McGovern’s reasoning arises from his belief that the question of when human life begins “depends on issues other than science and medicine.  For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a ‘human being.’”  If this were so, the Judge could be forgiven for refraining from choosing between “competing religious and moral beliefs,” but it is not so.  The question of when human life begins is, in fact, a scientific question.

Why is it that the Church now teaches not only (as she has always taught) that abortion is gravely wrong, but that human life begins at conception?  It is not something that we can deduce with certainty from Divine Revelation.  The Catholic Church teaches that it is always gravely wrong to destroy an innocent human life. This is surely unexceptionable, and many non-Catholics would readily accept its truth.  To put this teaching fully into practice, it is necessary to know what constitutes a human life, and preferably when human life begins.  To answer this question we turn to science, for it is science which is competent to provide the answer.   The Church teaches that it is wrong to destroy an early embryo above all because science indicates that this embryo, from the moment of conception, is a human life.

Science’s understanding of the process of development of the embryo has grown enormously in recent decades, particularly in the light of a growing understanding of the human genome.  The more we learn about human embryology, the clearer it becomes that once sperm entry is completed during the process of fertilisation, a new and distinct human life is present.  The genetic code of this new embryo is different from that of the man and the woman whose gametic cells united to create it.  It is the same genetic code as that of the baby who, in the natural course of events, will be born nine months later.  Fertilisation initiates a process of growth and development which continues until death.  There is no non-arbitrary point at which the embryo changes from one type of being into another.  In the words of Justice Hederman in the famous X case, cited by Justice McGovern, “[o]ne cannot make distinctions between individual phases of the unborn life before birth or between unborn and born life.” The embryo, from the beginning, is a distinct, separate, self-ordering organism, so it is not “just a ball of cells” as is sometimes claimed, or mere “genetic material”, in the words of Justice McGovern.  It is a human organism, and it is alive.  In other words, it is a human life.

There are, of course, scientists who deny this, and the fact that there is disagreement among scientists weighed heavily in Justice McGovern’s deliberations.  The obvious (perhaps subconscious) motive for this denial by scientists and others is that to accept that the early embryo is a human life would be inconvenient for some people - it would have implications, imposing restrictions whether in relation to sexual behaviour or in relation to what may be done with and to human embryos in vitro. (Such concerns were evident in the submissions on behalf of the Attorney General who was fearful that recognising the humanity of the pre-implantation embryo would have implications for the use of the “morning-after pill.”) It is interesting to note that those who deny that life begins at fertilisation seem unable to reach consensus on when it does begin. The scientists who accept that the early embryo is a human life do so because that is what the science tells them.  What motive could inspire the many eminent embryologists and other scientists (including those who gave abundant and persuasive evidence in this case) who say that human life begins at conception, if this is not, in fact, true?

The key legal consideration in this case was whether the term “unborn” or “beo gan breith” in Article 40.3.3 included within its scope the embryo outside the womb.  It may be fair to say, as the Judge concluded, that the intention of the people of Ireland in adopting the Eighth Amendment was to prevent the legalisation of abortion and that they had no explicit thought at that time of embryos created in vitro.  It is worth noting, however, that the Irish text of the Article, which in the event of a dispute would have priority, seems to be somewhat more precise than the English word “unborn.” “Beo gan breith,” although not further defined in the Article, in legislation, or in authoritative legal rulings, literally means “alive without birth,” a description which could certainly be applied to embryos in vitro.

Generally speaking, it is encouraging that Justice McGovern attached so much weight to the intentions of the people in adopting constitutional provisions.  He refers to the recent opinion of Chief Justice Murray that “it is reasonable to consider whether there is any history or background to the enactment of the Constitution capable of elucidating what was in the contemplation of the framers.” This may serve as a useful precedent in future cases. This is despite Justice McGovern’s citing of other precedents justifying interpretation in the light of “changing values,” and even changing concepts of “prudence, justice and charity.”

References to earlier rulings on the rights of the unborn referred to the unborn in the womb, for that was what was at stake in these cases.  In 1961 the Civil Liability Act clearly means by “unborn,” the child in the womb, but at that time “unborn” could have had no other meaning.  The first baby created by in vitro fertilisation was not born until 1978. Even in 1983, when the Eighth Amendment was passed, IVF was a new and rare technique.  It is unlikely that at that time there were any IVF children in Ireland and it is almost certain that the procedure had never been carried out here. The present case therefore treats of a situation which, from the point of view of the Court, is a novel one, and is not subject to clearly needed legislation.  Despite the lack of explicit reference to unborn human life outside the womb, it seems that protection for these embryos could be readily construed or implied in the intentions of the people of Ireland in 1983 who sought, by amending the Constitution, to copperfasten the legal protection afforded to human life in its earliest, most vulnerable form.  It certainly seems easier, from a logical point of view, to extend this protection than to create a situation where one class of human beings has no status whatsoever in the eyes of the Constitution.

The refusal of the Court to extend the rights accorded to the unborn child in the womb to embryos outside the womb has brought about precisely this deplorable situation.  This fact is recognised by Justice McGovern, for “[i]f the frozen embryos are not ‘unborn’ within the meaning of Article 40.3.3 of the Constitution and are not given protection by the Constitution they do not have ‘personal rights’ under the Constitution.” Furthermore, “in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence.”

The question of how best to resolve the fate of those many human embryos condemned to a state of suspended animation is a difficult one.  At present, the Code of Practice of the Irish Medical Council protects in vitro embryos from “deliberate and intentional destruction.”  The Code also requires that “any fertilised ovum must be used for normal implantation and must not be deliberately destroyed” (emphasis added), a requirement which seems to be widely ignored. It is clear that we cannot continue to rely upon guidelines that “do not have the force of law and offer only such limited protection as derives from the fear on the part of a doctor that he might be found guilty of professional misconduct.”

There is a considerable danger that any proposed legislation to regulate assisted conception and the treatment of embryos in vitro  will be along the lines recommended in the 2005 Report of the Commission on Assisted Human Reproduction (CAHR).  There will certainly be considerable lobbying for legislation of this form, rather than tighter regulation or - better still - selective banning, rather than “control”, of harmful activities in this area. The members of CAHR seem to have been heavily influenced by the deeply unsatisfactory UK regulatory model which, it should be noted, is very different from the European norm.  The British Human Fertilisation and Embryology Authority (HFEA), despite claiming to operate a strict regulatory system, interprets its seemingly elastic guidelines with ever-increasing permissiveness.  A majority recommendation of CAHR was that “the embryo formed by IVF should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed in vivo.”

In addition to other forms of abuse, this would leave the human embryo in vitro exposed to the possibility of the sort of lethal experimentation in which the present British Government aspires to be a world leader. Even if one concludes that, for the majority of frozen embryos, there is no hope of their being given the opportunity to be implanted and allowed to develop, this does not justify subjecting them to destructive experimentation.  The argument that “they are going to die anyway” would rightly be repudiated if it were used as justification for lethal experimentation on the elderly terminally ill or on prisoners condemned to death. Most other EU member states have regulations considerably more restrictive than those in force in the UK or those proposed by CAHR. Irish legislators should look beyond our nearest neighbours for guidance in this matter.

The very least that may be said of the human embryo is that it is a human organism and that the life of this organism is objectively qualitatively different from mere cellular life.  What is a human being if not a human organism?  The nature of its being is not altered by its location.  If it is not a human being prior to implantation, it will not suddenly become a human being later.  The fact that a pre-implantation embryo needs to be implanted in order to develop further does not alter the fact of what it is.  A 20-week-old foetus needs to remain in the womb in order to develop further.  Likewise a newborn child needs to be nurtured, and a disabled person may need ongoing support.   This dependence does not determine the status of the dependent human being.

I hope that, in the public interest, Justice McGovern’s ruling will be appealed to the Supreme Court, and that the Justices of that Court will “defend and vindicate” the right to life of the unborn child regardless of whether that unborn child has the good fortune to be safe inside his mother's womb.

An earlier version of this article was published in The Irish Catholic on 23^rd November, 2006

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