Irish court holds that an embryo is not \"unborn\" life

By JOHN L. ALLEN JR.
Dublin, Ireland

By now it’s a cliché that society’s technical capacity to manipulate human life has outstripped its moral capacity for reflection on that capacity, and Ireland this week offers a classic case in point.

I’m in Dublin this week for two lectures at Trinity College, and thus I’ve had the chance to follow the case up close.

In brief, a high court in Ireland has ruled that an embryo created as the result of in-vitro fertilization is not an “unborn” person under the terms of the Irish Constitution, and hence is not entitled to the legal protections the constitution provides for unborn human life.

The case arose in the context of an estranged married couple, now in disagreement as to what to do with three embryos created during an IVF procedure in 2002, as a result of which the wife became pregnant and gave birth. Under the policies of the fertility clinic, the remaining embryos were frozen and cannot be returned to the wife without her husband’s consent, which he has refused to give.

The wife then sued the clinic under Article 403.3 of the Irish Constitution, which was approved in a popular referendum in 1983, which says: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its law to respect, and as far as practicable, to defend and vindicate that right.”

The High Court judge in the current case ruled that the language of Article 403.3 referred to a fetus in a mother’s womb, and was not intended to address the situation of embryos created outside the womb using IVF techniques. He said that to establish precisely when human life begins, and therefore when legal protections attach to it, is outside the scope of the courts and should be resolved by parliament or in another referendum.

After having heard testimony from a variety of perspectives, the judge concluded that everyone seems to agree that embryos are entitled to “special respect,” but what exactly that means from a legal point of view remains ambiguous.

In 2002, the Irish government established a Commission on Assisted Reproduction, which issued a series of recommendations, including that an embryo formed by IVF should not receive legal protection until implanted in a woman. The commission’s recommendations, however, were never given the force of law.

The consensus in Ireland seems to be that new legislation will be required to define exactly what that “special respect” entails, though given that national elections are looming on the horizon, few politicians seem to have much appetite to take up such a divisive issue anytime soon. For the time being, therefore, the legal limbo in which embryos are stuck seems likely to endure.

Archbishop Diarmuid Martin of Dublin expressed disappointment at the decision.

“Human life must be respected and protected absolutely from the moment of conception,” he said. “From the first moment of his or her existence, a human being must be recognized as having the rights of a person.”

The director of the clinic involved in the court case, meanwhile, welcomed the ruling, saying that a ban on freezing embryos would have produced “mayhem,” including “plummeting” birth rates (presumably because many couples would not agree to producing multiple embryos if they all must be implanted), and a “massive increase” in multiple births (because other couples would agree to the implantation of multiple embryos if that’s their only choice).

At a minimum, what the Irish case makes clear is that ethical debate over the status of embryonic life is only beginning. If the Catholic Church is to be an effective voice in that debate, it will have to find a way to make clear that it’s not advocating a confessional morality (simply one among the many ethical voices the judge in this case decided he could not choose among), but rather an objective truth about human dignity that transcends creed and culture.

It will interesting indeed to watch Martin and the rest of the Irish church attempt to rise to that challenge here.