The High Court has begun hearing a case which will decide the fate of three embryos which were frozen and stored at a fertility clinic in Dublin after a married couple received treatment four years ago.
The couple underwent fertility treatment at the Sims Clinic in Rathgar which resulted in a daughter being born three years ago.
They received treatment at the clinic in early 2002 after an operation on the wife to remove an ovarian cyst led to two thirds of her right ovary being removed.
In total, six embryos were produced by the treatment.
Three were successfully implanted into the woman, who gave birth in October of 2002.
The remaining three were frozen and stored and the couple signed an agreement which required the consent of both for the embryos to be thawed and implanted.
The couple then subsequently separated and the wife wishes to have another child and has sought to have the embryos thawed and implanted.
Her husband refused to give his consent.
On behalf of the wife, Gerard Hogan SC said it would be clear from the evidence of the woman concerned and from the consent documents, that at all stages it was envisaged that the frozen embryos would be used, not destroyed, and that she always intended to endeavour to have another child by this process.
He said there were two separate questions to be decided. There was the private law question of whether the husband gave his consent for the further use of the embryos.
But, he said, hovering above this was the public and constitutional law question of whether or not the embryos were classed as 'unborn' under Article 40.3.3 of the Constitution.
If the court found in favour of this argument, the plaintiff would argue that the right to life of the unborn would have to be vindicated, Mr Hogan said. And the best way to do this, he added, would be by transferring the thawed embryos into the plaintiff.
Mr Hogan said he would be arguing that the defendant gave consent for the creation of new human life in 2002. The only consent required for the subsequent use of those frozen embryos was the consent of the plaintiff into whose uterus they were to be inserted, he said.
Counsel for the State, Donal O'Donnell, asked the court to decide on the issue of private law first and make a ruling on those facts. If this did not resolve the case, then the constitutional issues could subsequently be examined, he suggested.
Counsel for the defendant, John Rogers, said the principal issues the court had to decide are, was there consent and if so, consent to what? And was it withdrawn at a later stage by the husband, and was he able to withdraw it?
