Legislating for Article 40.3.3: Staunton on The Status of the Embryo

Author: Ciara Staunton, School of Law, National University of Ireland, Galway

What about our embryos in vitro?

As the Health Committee begins the task of making its recommendations on lawful abortion, the time is perhaps right for a decision on the status of embryos in Irish law. While the Supreme Court has stated that the embryo in vitro does not come within the definition of the “unborn” in Article 40.3.3 and thus is not constitutionally protected, the lack of legislation on the status of the embryo has meant that embryos in vitro in Ireland arguably have no protection in Irish law.

This call for call for clarity on the definition of the unborn is not new. When the 8th amendment was first put before the Dáil, Peter Sutherland (the Attorney General of the time) noted that the unborn was a new term and required definition. In the Seanad, both Mary Robinson and Catherine McGuinness were critical of the lack of definition of the unborn which lead Catherine McGuinness to propose to insert “which shall not include fertilised ovum prior to the time at which such ovum becomes implanted in the wall of the uterus” after the word unborn. This would have made it clear that an embryo only acquired constitutional protection upon implantation and thus Article 40.3.3 was only concerned with embryos in vivo. However her proposal was rejected and uncertainty remained over the remit of Article 40.3.3.

In 1996, the Constitution Review Group again called for clarity as to the definition of the unborn. In the view of the group, the unborn could mean on the way to being born, capable of being born or it could point to some point in the developmental process of the foetus such as fertilisation or implantation of the embryo onto the wall of the womb. The Group was of the opinion that this definition was important as it would clarify whether Article 40.3.3 has an impact on assisted reproductive technologies and by implication, embryonic stem cell research.

In March 2002, a proposed constitutional amendment was put before the people. The proposed text would have been supported with the Protection of Human Life in Pregnancy Bill 2001. This Bill stated that abortion was to mean the “intentional destruction by any means of unborn life after implantation in the womb of a woman” and thus made it clear that Article 40.3.3 does not protect embryos outside of the womb. The amendment was ultimately rejected and no further Bill clarifying the status of the embryo was proposed by the Government.

The Government did however acknowledge that there was a lack of clarity as to the status of the embryo in Ireland and that assisted reproductive clinics were operating in a legal vacuum. The Commission on Assisted Human Reproduction was appointed in 2000 and was tasked with producing a report which considered the legal, ethical and scientific factors in regulating assisted human reproduction. In its report in 2005, the Commission referred to the lack of clarity surrounding the meaning of the unborn. The Commission was of the opinion that clarity could only come from an interpretation from the Supreme Court or by way of referendum. However the Commission did recommend (with one dissent) that the embryo should not be legally protected until it is “placed in the human body”.

Despite the work of the Review Group, no legislation was forthcoming and it was thus unsurprising that the status of embryos in vitro came before the Supreme Court in Roche v Roche. The case concerned a couple who underwent IVF treatment but subsequently separated. There were a number of frozen embryos left over from previous fertility treatment which Mrs Roche wanted to implant which was contrary to the wishes of Mr Roche. In rejecting Mrs Roche’s claim, the Supreme Court held that the embryos did not come under the definition of the unborn and thus had no constitutional protection. Hardiman J was concerned with the lack of regulations on assisted reproduction in Ireland stating that if the issues raised in the case were not addressed, practices which are controversial could potentially be unregulated in Ireland. Geoghegan J did note that while embryos are deserving of respect, it is for the government and not the courts to provide guidance on the status of embryos.

As the embryo does not come under the definition of the unborn, the embryo in vitro is currently unprotected under Irish law. Legislation is needed to ensure that assisted reproductive clinics operate within a legal and ethical framework. Furthermore this legislation should make it clear whether embryonic stem cell research is permissible in Ireland. While the regulation of assisted reproduction and embryonic stem cell research are on the Programme for Government, there has been no movement on this issue. In introducing legislation for lawful termination in Ireland, the Government should look beyond abortion and legislate for assisted reproduction and embryonic stem cell research. This will ensure that the embryo receives protection in law and furthermore provide clarity for clinics and those seeking assisted reproductive technologies.