What is In Vitro Fertilisation?

In Vitro Fertilisation (IVF) is a method of assisted human reproduction where an ovum is surgically removed from the ovary and combined with sperm in a laboratory. "In vitro" literally means "within a glass" and is also commonly described as "test tube" fertilisation. The treatment was initially devised to enable women with damaged or absent fallopian tubes to have a child. If the ovum is fertilised, the resulting embryo may subsequently be placed in the woman's uterus where implantation may take place. Where multiple embryos are created, one or more may also be stored or preserved for future use. Multiple embryos are often created in the course of IVF treatment to avoid women undergoing further courses of invasive and potentially dangerous infertility treatment, where possible.

IVF is one of a number of available assisted reproduction technologies (ARTs), to also include Assisted Insemination (AI) and Gamete Intra-Fallopian Transfer (GIFT).

The Irish Situation

Unlike many other jurisdictions, there is currently no statutory or legislative guidance in relation to the practice of ARTs or the status of the embryo in Ireland. The only practical guidance is to be found in the Medical Council Guidelines which, of course, do not deal with the important legal consequences of assisted reproduction. It appears that, in the present absence of any regulation in Ireland, many fertility clinics seem to be voluntarily adhering to the codes and practices laid down by the UK Human Fertilisation and Embryology Authority (HFEA). However, this, of course, does not take into account the unique legal position in Ireland.

A Commission on Assisted Human Reproduction (CAHR) was established by the Government in March 2000 "to prepare a report on the possible approaches to the regulation of all aspects of Assisted Human Reproduction and the social, ethical and legal factors to be taken into account in determining public policy in the area". In general, the Commission recommended that a regulatory body should be established by the Government to regulate assisted reproductive services and that appropriate guidelines should also be put in place to govern the storage and use of gametes and embryos. This regulatory body would also, in accordance with statutory guidelines, have power to decide cases where embryos are abandoned or where the commissioning couple cannot agree on a course of action, for example in the event of marital breakdown or where one or both partner(s) die or become incapacitated.

One possible solution advanced by the CAHR for the resolution of these disputes was the use of an intent or consent-based model, where the parties would be bound by what was previously and specifically agreed by them. It would, therefore, be essential that the parties give careful consideration to all issues and contingencies prior to creating any embryos.

Legal and Moral Status of the Embryo

In its report, the CAHR acknowledged that the production of surplus embryos constitutes an important feature in the practice of ARTs. On this basis, it devoted some time to considering the legal and moral status of the embryo and its role in assisted reproductive practices in Ireland. A wide spectrum of ethical perspectives and views concerning ARTs and the status of the embryo were canvassed in the report. It was accepted by the Commission that, while an element of arbitrariness may attach to the question of when human life begins and when the embryo might be said to attract legal protection, the embryo must have an intrinsic and special value based on its humanity and "potential for personhood". However, members differed in their views as to when the embryo would attract absolute protection, i.e. whether from the moment of fertilisation or at some subsequent stage of development. In other words, is an embryo a human life from the moment of its creation or can it only have the capacity for human life when implanted in the womb? The majority of the Commission ultimately recommended that the embryo formed by IVF should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed "in vivo".

Irish Case Law

In many jurisdictions, disputes have arisen in relation to the custody of surplus embryos following the breakdown of a marriage/relationship or on death. The first such Irish case on this subject was the case of MR v TR And Others1 which concerned three embryos held in storage following the separation of their "parents". The facts of this case were as follows. The parties were married in March 1992 and their first child was born in October 1997. In the hope of expanding their family, the couple undertook IVF treatment in 2001 when six viable embryos were created. Three embryos were implanted at that time and the remaining three were placed in storage. The IVF process was successful and the wife gave birth to a child in October 2002. However, by this time, marital difficulties had arisen and the parties separated.

A dispute then arose as to the "custody" and possible use of the three remaining embryos, in circumstances where the wife wished to use these embryos and the husband was unwilling to allow this. In its decision, the High Court considered the public and constitutional law question of the status of the embryo. Evidence from a number of expert witnessed as adduced on this question, with widely varying opinions. The Court also considered the protection afforded to the "unborn" in Article 40 of the Constitution and queried whether this protection would also embrace the stored embryos in this case. Noting that all previous case law on this subject had arisen solely in the context of abortion, the Court ultimately concluded that the term "unborn" did not encompass embryos in vitro and, therefore, did not include the embryos in question. The Court also held that it should not be the function of the Courts to decide their legal status and that this was a matter either for the Oireachtas or the people in the event of a constitutional referendum.

This decision was subsequently appealed to the Supreme Court and judgment is still awaited.

Conclusion

The plight of the couple at the centre of the MR v TR case may not be unique since it is estimated that there are currently some 1,000 embryos in storage in Irish IVF clinics. It is now over four years since the report of the CAHR was published in March 2005 and no action has been taken since that time to implement any of its recommendations.

While the advent of assisted reproductive technologies has offered new hope to people who wish to have a family but are unable to do so naturally, they also bring with them a wide range of legal, moral and ethical difficulties. Given the complexity and diversity of moral and ethical opinions on the subject, the question of the status of an embryo is a most difficult one. However, in the context of ongoing rapid advances in medical and scientific technologies, it is arguable that some clarification and guidance on its legal status in Ireland should now be provided. The consequences of any absence of legislative guidance was clearly seen in the MR v TR case above, where the Court noted that "the absence of any rules or regulations in this jurisdiction means that embryos outside the womb have a very precarious existence".