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The Irish Frozen Embryos Case (2006)

Patrick Carr examines the judgement delivered by Mr. Justice Brian McGovern of the Irish High Court, Dublin on 15 November, 2006 in the case of M.R. v. T.R. and Others, which considers the status of the pre-implantation embryo in Irish Constitutional Law. A pdf is available here.

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.

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.

beo gan breith in vitroBeo gan breith

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 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 must be used for normal implantation

There is a considerable danger that any proposed legislation to regulate assisted conception and the treatment of embryos in vitro

In addition to other forms of abuse, this would leave the human embryo in vitro

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.

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