A Supreme Court judge has described as ‘extraordinary’ the failure of Government to take any steps at all to enact laws to regulate fertility treatment here.

There has been no Green paper, White Paper or discussion documents relating to regulating fertility control, Mr Justice Hugh Geoghegan said.

He said it would be highly desirable for these matters to be addressed in legislation.

The judge was told by Gerard Hogan SC the Commission on Assisted Human Reproduction had in 2005 recommended fertility treatment should be regulated by laws similar to those in the UK, where consent to storage of embryos may be varied or withdrawn at any time, but ‘nothing happened’.

The Commission by an eight to one majority also took the view an embryo should only attract the legal protection provided to an ‘unborn’ under Article 40.3.3 (the 1983 anti-abortion amendment) of the Constitution when it is actually implanted in a woman.

The exchanges occurred in the continuing appeal before the five-judge Supreme Court by a separated mother of two against the High Court's refusal to order a Dublin clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The embryos were created after IVF treatment undertaken by the now 43-year-old woman and her husband in early 2002 and are stored at the SIMS fertility clinic, Rathgar, Dublin.

The couple had one child in 1997 conceived naturally and their second child was born in October 2002 as a result of the treatment.

Six viable embryos were created, three were implanted in the woman and the remaining three are frozen. The couple separated in 2002.

The woman claims she is entitled to have the remaining embryos implanted on foot of consents signed by her husband in 2002 relating to the fertility treatment and the State's obligation under Article 40.3.3 to protect and vindicate the right to life of the unborn.

She contends an embryo is an ‘unborn’ within the meaning of Article 40.3.3 because, she claims, human life begins from conception, when an egg is fertilised.

In opening arguments for the man late yesterday, John Rogers SC said the couple had made an initial agreement to find a means of procreation via IVF but this was never intended to be an enforceable legal agreement.

Counsel said the agreement related to implantation of the first three embryos and the man also consented to the freezing of the remaining three embryos, which were to be harvested if the first implantation did not result in a successful pregnancy.

They had ‘given no thought’ to what would happen to the remaining embryos if the first pregnancy succeeded and the woman herself had said so in evidence. The man did not want any more children.

The arrangements between the man and the woman could not include implied terms based on Medical Council guidelines concerning embryos as such guidelines were changing on an ongoing basis, counsel also argued.

Earlier, Mr Hogan, for the woman, argued the court should decide the meaning of ‘unborn,’ within Article 40.3.3, and whether it includes embryos in-vitro.

While there was no consensus on when human life begins and unanimity might never be achieved on that issue, it was accepted the entire human genome exists at fertilisation and there was a strong scientific belief that human life begins then.

There is unborn human life within Article 40.3.3 once there is conception, counsel argued.

The State in its submissions said the embryo was ‘worthy of respect’ but did not say what that meant in the context of this case, he added.

In reply to the judges, counsel said he accepted pregnancy, in the context of fertility treatment, begins when the fertilised egg is implanted in the woman.

That did not mean a fertilised ovum is not unborn life, he argued.

In other submissions, Mr Hogan said the man, having consented to fertility treatment in 2002, was thereafter prevented or stopped from withholding his consent to his wife using the frozen embryos for a legitimate purpose.

The core point was the husband had agreed to have the embryos created and the fact the woman already had two children was not relevant to the principle in the case, he said.

The appeal continues tomorrow.