The High Court has ruled that a man did not give his consent for frozen embryos to be implanted into his estranged wife.
In a preliminary ruling today, Mr Justice Brian McGovern ruled that there was no agreement expressed or implied as to what was to be done with three unused frozen embryos.
An embryo
An action was brought by the wife for a court order permitting implantation in her uterus of the three embryos, fertilised with her husband's sperm during the 2002 IVF treatment. They are currently frozen in the Sims fertility clinic in Rathgar, Dublin.
The 41-year-old woman has told the court she regards the embryos as "our children". She said she regards her 44-year-old husband as the father of any child or children which may result from an implantation and expects him to assume responsibility, including financial responsibility, for them.
The couple met in the mid-1980s and married in March 1992. They had a son five years later and shortly after his birth, the woman underwent surgery for an ovarian cyst.
Two-thirds of her right ovary were removed. In July 2001 the couple were referred for IVF and the following year both parties gave their consent for treatment. In November 2002 they had a baby girl, but towards the end of the pregnancy marital difficulties arose, with the husband having an affair.
They separated and reconciled before the marriage ended in December 2002. The husband has told the court he did not want to have any more children with his wife.
Mr Justice McGovern found the husband only agreed to have the three embryos implanted in 2002 after the reconciliation and the consent forms signed by the couple as they began the IVF treatment gave no agreement on future use.
"I hold that there was no agreement either expressed or implied as to what was to be done with the frozen embryos in the circumstances that have arisen," he told the court. "And I further hold that the first named defendant [husband] has not entered into an agreement which requires him to give his consent to the implantation of the three frozen embryos in the plaintiff's [wife] uterus."
The landmark case is dealing with three separate areas of Irish law, the consent issue, and more complex issues of public and constitutional law issues. Hearings on the second matters are due to begin on Thursday.
Mr Justice McGovern said the public and constitutional issues must be heard together. He told the court a number of questions arise as a result of this case, such as whether embryos are unborn and whether a person can be forced to become a parent against their will. The question of when life begins will is also expected to be debated.
The final ruling is also set to challenge a constitutional amendment in 1983, protecting the unborn. The woman's legal team will argue the embryos are covered by Article 40.3.3, which protects the right of the unborn.
In a statement issued after today's ruling, Dr Berry Kiely of the Pro-Life Campaign said she was confident the right to life will be vindicated in this case. "Whether or not the human embryo is transferred into the mother it has a dignity and value by virtue of its humanity," Dr Kiely said. "The court has a duty to adhere to these basic principles when deciding the case."