In a dispute between an Irish couple over the use of frozen embryos, created before they separated, a High Court judge has ruled that the man did not ever give consent for his estranged wife to use the embryos. Justice Brian McGovern ruled that the man - who in 2002 had signed a contract at a Dublin IVF clinic giving consent for three of the couple's fertilised eggs to be placed inside his wife and three others to be placed in cold storage for potential future use - had not authorised his wife to use the frozen embryos for future IVF treatments. The case is similar to the case of Natallie Evans that has gone through the UK courts and to the European Court of Human Rights.

The marriage of 41-year old Mary Roche and 44-year old Thomas Roche came to an end in December 2002, soon after the woman gave birth to their daughter, following IVF treatment with the first three of the six embryos that the couple had created. The woman, who wants to have another child, argued in court last month that she should be permitted to use the remaining frozen embryos even without her husband's specific consent. She argued that he had consented to be a father and provider to any offspring created as the result of the procedure. However, her ex-husband argued that such a role should require his specific consent and that he wanted no further children with his former wife.

The judge found 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'. However, he did also state that the contracts signed by each of the couple at the Sims International Fertility Clinic were 'vague and inadequate'. He noted that they did not address the issue of marriage break-up, or the death of one of the partners, or any other changes in circumstances after the creation of the embryos.

The woman's lawyer, constitutional expert Gerard Hogan of Trinity College Dublin, also argued that frozen embryos should be included within the constitution's definition of 'the unborn'. A 1983 amendment to the constitution commits the state to protect the right to life of 'the unborn', but does not specify whether the right extends to frozen embryos. This means that the case must move on to open up wider issues about whether fertilised human eggs should enjoy a constitutionally protected right to life - a right that would possibly take precedence over those of Mr Roche. Ireland has not yet regulated the practice of IVF or related treatments. The judge acknowledge that in saying the constitutional issues must be considered, 'deeper waters' would be entered into as the country's constitutional ban on abortion would also need to be addressed.

Justice McGovern also said that the court must consider another fundamental point of law and ask whether the man, who is now in another relationship, can be 'forced' to become a parent again and be held financially responsible for the child. These next stages of the case are not expected to be decided until the autumn, due to the summer break of the Irish civil court system in August and September. In any case, however the issues are decided in the High Court, it is expected that the case will be appealed to the Irish Supreme Court.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.