The man at the centre of the frozen embryos case did not give his consent for the three frozen embryos to be implanted in his wife's uterus, a High Court judge ruled yesterday.
Mr Justice Brian McGovern held there was no agreement between the couple, either express or implied, as to what was to be done with the frozen embryos in the circumstances that have arisen.
The man and woman have two children, their second after successful IVF treatment at the Sims Clinic in Rathgar, Dublin. The current case concerns the fate of the three embryos frozen and currently held at the clinic.
The couple have since separated but the woman has gone to court seeking the implantation of the three remaining embryos in her womb.
In the High Court yesterday, Mr Justice McGovern held there was no evidence that the husband gave his express consent to the implantation of the frozen embryos in his estranged wife's uterus.
He further held that the husband had not entered into an agreement which requires him to give his consent to the implantation of the three frozen embryos.
"In the light of the evidence in this case and the documents which have been produced it cannot be said that it was the presumed intention of the parties that the three frozen embryos would be implanted in the woman's uterus in the circumstances which have arisen, namely following the success of the first implantation procedure and the legal separation of the couple," Mr Justice McGovern said.
The judge said it was clear when the woman signed a consent form on February 1st, 2002, in which she agreed to the placing in her uterus of three embryos, that the three embryos referred to were those which were not frozen. The purpose of freezing the other embryos was to use them if the first implantation failed.
Mr Justice McGovern said in the light of his judgment the remaining issues are ones of public and constitutional law and whether the husband can be forced to become a parent against his will. There were, the judge said, other moral and ethical issues to be decided regarding the status of the frozen embryos under the Constitution along with the rights of a family and the right to privacy under the Constitution and also under the European Convention on Human Rights.
The public law issues and constitutional issues, the judge said, were inextricably linked and should be heard together.
Counsel for the woman, Gerard Hogan SC, said there will be three major witnesses in the next phase. Their case, he said, would be that the frozen embryos do constitute the unborn under the Constitution.
Counsel for the estranged husband John Rogers SC said his side will call an expert witness to give evidence on the process of becoming life which commences with the embedding of the embryos and three or four days later it gives rise to a pregnancy test.
However, Donal O'Donnell SC, counsel for the Attorney General, a notice party to the action, said the scientific issue as to when life begins is one issue the court will not be asked to decide. That, he said, is an ethical and moral issue which should not be entered into until absolutely necessary.
The full hearing of the public law issues begins tomorrow.
Before Mr Justice McGovern read his judgment, he referred to the media reporting in the case.
He said "the press is at liberty to publish the names" but he expressed the wish that they would handle the matter in a sensitive way.
In his reserved judgment, outlining the facts of the case, Mr Justice McGovern said the first issue he had to decide was whether the couple had agreed that the embryos would be returned to the woman's uterus and whether the agreement still binds the parties irrespective of the subsequent marital separation.
The resolution of the issue, he said, depends on identifying whether there was an agreement, express or implied, between the two of them as to what should happen to the frozen embryos in the circumstances that have arisen.
One of the curious features about the case, the judge said, is that there was no document furnished to the couple by the clinic setting out what was to happen to any frozen embryos, either in the event that she became pregnant from the first implantation or in the event of their circumstances changing such as on the death of either party or a separation or a divorce.
"What is quite clear is that neither the wife or husband adverted to the issue until their marriage broke down. I am satisfied therefore in the absence of the consent forms indicating agreement either expressly or by implication, there was no agreement as to what was to happen to the three frozen embryos in the circumstances which have arisen," the judge stated.
In particular, he said the husband did not give his consent to the use of those embryos for implantation in to his wife's uterus.
The consent forms signed by the couple, he pointed out, were unsatisfactory when taken together because they were vague in certain important aspects and they did not cover the contingencies which might arise.
One of the contingencies, he said, which might have been provided for had arisen in this case - the separation of the couple.
Referring to the husband's consent form, Mr Justice McGovern said there is nothing in that document which establishes that the husband expressly gave his consent to the implantation of the three frozen embryos in the woman's uterus.
The judge said it seemed to him from the evidence in the case and from the authorities which have been outlined in other jurisdictions that there is a wide variety of possibilities when it comes to deciding what should happen to the frozen embryos.