The estranged husband of a woman seeking to have embryos frozen after being fertilised with his sperm four years ago implanted in her womb has told the High Court he does not want to have any more children with his wife.
"I have a right to say no, it's a human right," the 44-year-old father of two said. He had no intention of having more children with his wife because they were separated, he added.
When he and his wife embarked on IVF treatment from late 2001 into 2002, the intention was to have another child as a brother or sister for their son, who was born naturally in 1997, he said.
There was difficulties after that first birth, including a post-natal depression experienced by his wife, but they had decided to give it "one more go" and opted for IVF.
They both accepted there was a risk of multiple births when they agreed to have three embryos implanted in his wife's uterus in early 2002.
He believed the three remaining embryos, which were frozen, were only to be used if his wife did not become pregnant following the first implantation. When his wife did become pregnant in February 2002 after implantation, they never discussed further children, he said.
When they had their second child in September 2002, "that was it" because he had reached the age of 40, he said. He said he had reached that decision with his wife when she was pregnant with their second child.
He was giving evidence in the action by his wife aimed at securing a court order which would result in the implantation of the three frozen embryos in her uterus.
The couple's identity is being kept from the public by court order.
Evidence relating to the first issue in the action - whether there was a consent by the husband to the implantation and if any such consent was irrevocable in light of his family rights and the couple's separation - concluded yesterday after which the parties made legal submissions.
Those submisisons are expected to conclude tomorrow after which Mr Justice Brian McGovern will reserve for a short time his decision on the contract issue.
If he finds there was an irrevocable contract, the case ends. If he rejects the woman's claims on the consent issue, the case will resume on July 17th or 18th to address public law issues and, perhaps, constitutional issues relating to when human life begins and the nature of an embryo.
Earlier today, the husband said his marriage effectively broke up in 2002 and the couple since then were involved in family law proceedings which had not yet concluded. There was an ongoing battle relating to access, he said.
He said he had joint custody of the children but added: "It's not really joint custody."
When he signed a document at the Sims clinic on January 29th 2002, headed 'Husband's Consent', he understood this meant he would be the father of a child conceived by IVF treatment.
That document, the court heard, involved his consenting to his wife undergoing "the course of treatment outlined above" and his accepting he would be the legal father of any "resulting child".
He agreed he also signed a consent for the freezing of the embryos. Cross-examined by Ms Inge Clissman SC, for his wife, the man agreed he has regular contact with his children and sees them 3 to 4 times a week.
He said they had embraked on IVF in 2002 in the hope of having another child. He agreed he was told by doctors there was the possibility of more than one.
He agreed the 'Husband's Consent' document stated that he agreed to the "course of treatment outlined above" which he agreed he understood to be IVF.
He also agreed the document stated: "I understand I will become the legal father of any resulting child."
He agreed there was nothing on that document to say he could withdraw that consent. He accepted his defence stated he believed embryos are "deserving of respect".
That respect related to careful storage and he believed they should be kept indefinitely in storage.
He accepted that if a child or children were born following implantation of the embryos in his wife, she would be substantially responsible for that offspring and he would be someone who would "contribute".
He was unaware of the legal implications for him if the embryos were donated to others. In submissions for the husband, Mr John Rogers SC argued the husband's consent document signed by his client stopped short of implantation of the embryos in the wife's uterus and related only to the fertilisation of the woman's eggs with her husband's sperm.
If the court found there was a consent to implantation, it should rule the husband could withdraw or revoke that consent in light of his right to determine the size of his family and how his family life will proceed, counsel added.
The man's wife was effectively claiming his family rights "became frozen" on January 29th 2002, no matter what the consequences, counsel said.
Her case was that she was entitled to determine what children she had but he was not.
In her submissions, Ms Clissman said the consent document signed by the man showed he knew the IVF treatment was being done with a view to the birth of a child.
It made no sense to look at that document in segments as Mr Rogers advocated. The point of the mixing of eggs and sperm was to create a pregnancy.
Her client regarded the embryos in the same way as her children and it was not appropriate for her husband to withdraw his consent.
For the Attorney General, Mr Brian Murray SC said the consent documents referred to in evidence were executed together and should be regarded as one.