The possibility of embryonic stem-cell research has important legalimplications in Ireland, writes Maria J. Colbert.
In 1978 Louise Brown, the first "test-tube" baby, was born, and while all marvelled at the medical achievement, it soon became clear that complicated legal questions were raised by the new technique of assisted reproduction.
One major consequence of IVF is the accessibility of the developing early human embryo to medical or scientific examination.
In the case of fertilisation in the body, or in vivo, rather than in vitro, frequently a woman will be unaware that she is pregnant until at least 14 days after fertilisation.
Before the development of IVF, therefore, there were few opportunities to examine early human embryos.
It is this potential to develop embryos outside the human body which has made embryonic stem-cell research possible and which gives rise to a tangle of legal problems.
In other jurisdictions such techniques have been the subject of consultations, expert reports, academic papers, legal proceedings and legislation for more than 20 years.
In Ireland the issues raised are the subject of a report due to be published shortly by the Commission on Assisted Human Reproduction.
In Britain the Warnock committee was deeply divided over the most important of their findings, research on the human embryo.
Since under British law the legal protections for the human embryo were not equivalent to the protections afforded to children or adults, Warnock stated that the in vitro embryo should be afforded limited protection in law.
The committee recommended that research on human embryos should be permitted up to 14 days after fertilisation.
As to the origin of the embryos used for research, the committee was evenly split on whether to use only "supernumary" embryos, created through IVF for implantation but no longer required, or to allow embryos to be brought into existence solely for research purposes.
The Human Fertilisation and Embryology Act, 1990, was passed and the Human Fertilisation and Embryology Authority was established to license, monitor and inspect infertility treatment and embryo research.
During the long public debate and consultation period leading up to the enactment of the Act of 1990, it was proposed that a human embryo be referred to as a "pre-embryo" up to the 14th day after fertilisation.
In an American decision, however, the court accepted that an embryo was the youngest form of a being, and that there was no need for a subclass of the embryo or "pre-embryo" because there was nothing before the embryo.
The court concluded that the term "pre-embryo" was not a medically correct one. The creation of a semantic distinction should not equate with a decision that it is acceptable to carry out research.
In Germany the Benda report of 1985 recommended that artificial reproductive technologies and embryo research should be furthered. But the express constitutional protection of the freedom of scientific inquiry and research should be limited by the right to human dignity, bodily integrity and life.
The report referred to a decision of the Federal Constitutional Court that life existed at least from the 14th day after fertilisation.
The commission concluded that human life began to develop at fertilisation, and that therefore every dealing with early human embryos had to conform to the constitutional guarantee of human dignity.
It was contrary to the constitutional obligations to respect human life and dignity to deliberately create human life without intending it to develop into a human being. By a majority, the commission decided that research on human embryos should be permitted only if its object was to gain vital medical knowledge.
After lengthy public discussions the Embryo Protection Act was enacted in Germany in 1990, prohibiting the fertilisation of an ovum for any purpose other than bringing about a pregnancy, the fertilisation of more ova than can be transferred to a woman and the in vitro development of an embryo for any purpose other than to transfer it to a woman.
During the debate in both Germany and the UK, it was argued that, since abortion was permitted until a much later stage of development, it was illogical to argue that considerations of respect for the human embryo precluded research.
In Germany, in response, it was pointed out that the symbiotic relationship of an in vivo foetus and its mother meant a personal rights conflict was involved in pregnancy termination, and that no comparable conflict occurred in the case of research with in vitro embryos.
No individual would be affected by a ban on embryo research. The loss of embryos had to be balanced against freedom of research and inquiry, and the as yet nebulous advantages the research promised.
The permissibility of abortion, the morning-after pill or the IUD does not logically entail the permissibility of embryo research. And hence the Irish Government's decision in the failed abortion referendum in 2002 to seek legal protection for the morning-after pill with a reference to "implantation" has no necessary implication for its position on embryo research.
In the UK, embryo research and abortion were regarded as comparable, and the legality and prevalence of abortion were seen as a strong argument for the legality of embryo research.
In Germany a written constitution with a bill of rights provided a structure by which disparities in rights conflicts were recognised and new developments more systematically assessed. In drafting legislation, in my view, we should look towards countries like Germany, which share with us a strong constitutional tradition.
Among the personal rights and values recognised and protected by the Irish Constitution are the right to life, the right to found a family and to "beget children" and the right to marital privacy.
By Article 40.3.3 the State acknowledges the right to life of the unborn, with due regard to the equal right to life of the mother and guarantees by its laws to respect, defend and vindicate that right.
But does the protection of Article 40.3.3 extend only to the "unborn" in vivo, or does it encompass in vitro embryos independent of considerations of abortion or pregnancy?
It is almost certainly the case that the protection was not intended to extend to embryos created through IVF, but courts have been willing to view the Constitution as capable of a dynamic interpretation in contemporary circumstances.
Although Article 40.3.3 was the subject of much judicial scrutiny, little can be gleaned from the judgments on the question of whether "unborn" life is regarded as beginning at fertilisation or once a pregnancy begins. Indeed, in 1996 the Constitution Review Group explicitly warned of the need for a clear definition of the unborn.
Article 40.3.3 also expressly mentions the rights of the "unborn" in connection with the right to life of "the mother", implying that the provision contemplates a situation of pregnancy and birth and cannot extend to the protection of embryos outside that context.
But, by another argument, if, under Article 40.3.3, the protection of unborn life is more important than the right to dignity, self-determination, bodily integrity and privacy of the pregnant woman, then the reasons put forward for research on human embryos must be grounded on rights more compelling and superior to those of the mother, otherwise the protection of unborn life must still take precedence.
It is uncertain how the right to life of IVF "supernumary" embryos, with no prospect of further development or birth, can be protected. It is clear that the establishment of a system of regulation of IVF and embryo research is now a matter of urgency.
Maria J. Colbert is a practising barrister specialisng in medical law.