Every sperm is sacred, every sperm is great. If a sperm is wasted, God gets quite irate.
There were times in the High Court last week when it seemed that Monty Python’s take on the theological interpretation of life’s beginnings was likely to be quoted as eminent minds debated the meaning of life.
The philosophical, religious and vernacular versions of what life is, and our understanding as to when it begins, were aired during the frozen embryos case as the court decided the public element of this painfully modern dilemma.
Thomas and Mary Roche conceived six embryos by IVF while they were married. Three were implanted, leading to the birth of a daughter. Such an attrition rate is common in IVF, a process that has a 25% chance of resulting in the birth of a baby.
Three embryos were still in cold storage when the couple’s marriage broke down. Mary contended her husband had consented to be the father and provider to any resulting offspring at the outset of the procedure, and all that was required to bring them to life was the use of her womb. Thomas argued that a role as important as fatherhood ought to require his consent and he did not want any more children with his former wife. The court found in his favour. Unless there is a successful appeal to the Supreme Court, the embryos will not be implanted in his wife.
Now their fate is the subject of a second hearing that will have enormous implications for Irish contraception and abortion law. It could also provide a definitive answer to the question that has led the High Court into the most obscure realms — when does life begin? There is no indication as to what the court will decide, but was there a straw in the wind to be found in an Irish case ruled on in Strasbourg the week before last? The central factor in the frozen embryos case is that Bunreacht na hEireann gives constitutional protection to “the unborn” as opposed to “unborn persons” or “unborn citizens”. Are these little clusters of cells — each of which, as an expert in cellular biology told the court last week, carries the blueprint for a unique human being — “the unborn”? Or as a lawyer representing Thomas Roche argued, are they denied that status because they are missing the vital element of a womb in which to be implanted and developed? The recent Irish case in Europe suggested that the protected status of “unborn” might not be that easy to achieve. A woman pregnant with twins discovered after a 14-week scan that one of her babies was dead and the other had a serious genetic condition inconsistent with life. It was diagnosed as Trisomy 18 or Edwards Syndrome and meant the baby might survive for a few days, but would have no chance of a life.
Distraught and understandably reluctant to continue carrying her dead and dying twins, the woman made inquiries about having an abortion here. When that didn’t seem possible, she went to England for a termination. The trauma put her relationship under such strain that it ended soon afterwards, and she took a case to the European Court of Human Rights claiming her liberties and privacy had been infringed by Irish law.
She lost her case in Europe after lawyers for the Irish state put forward an intriguing argument. By not taking her request for an abortion to the Irish courts, they maintained the woman had not given this jurisdiction a chance to provide the required relief. The suggestion is she might have been given permission to have the abortion here.
Since it was arguable the foetus might not be born alive, or had no realistic chance of life, then the Irish courts could have held it was not “unborn” within the meaning of the constitution. So the woman lost her case in Europe for not exhausting all legal avenues in Ireland.
Edwards Syndrome is a catastrophic genetic condition for which there is no cure. Most babies affected die within hours or days of birth. Some may survive to their first year and there are rare documented cases of children living to up to seven years. The Irish government effectively argued that foetuses suffering from a condition with which they could live for up to seven years might not be classed “unborn”. That argument could have been made if such a proposition was put before the superior courts here.
So where does this possibility leave the three frozen embryos? They would seem to have a far slimmer chance of being born than the Edwards Syndrome twin. That embryo had reached 14 weeks gestation and had a reasonable chance of being born alive.
These little specks of human blueprints have no immediate prospect of implanting in anybody’s womb. And even if they are thawed and used, each probably has a one in three chance of being the one to implant. That’s if they implant at all, as the odds are up to 75% against that happening.
In short, if the Irish government anticipates that a terminally damaged 14-week-old foetus, with beating heart, organs and fingernails in place, might not be considered “unborn” under the constitution, it is difficult to see how a frozen embryo could meet the requirements of that definition. Unless, of course, this was an entirely theoretical argument before the European Court of Human Rights, intended simply to defeat the plaintiff’s challenge.
But if we take the state’s argument at face value, then the status of “unborn” requires some strong likelihood not just of birth but of meaningful survival. And if this represents well-informed thinking on the issue, it is difficult to see how three frozen embryos, with so many hurdles to cross, could ever be entitled to the constitutional protections guaranteed to “the unborn”.
But what happens if the court decides that the embryos can be classified as “unborn”? It already ruled that Thomas Roche cannot become a father unless he consents. Presumably this is not limited to his ability to veto his former wife becoming pregnant with their children. Even if the embryos were to be donated to a childless couple, beat the odds and develop into babies, he would still be their biological father.
Leaving aside the immense cruelty of facilitating the donation of these embryos to strangers in a situation where their natural mother wants a chance to carry them, and where they would have natural siblings in a household to welcome them, this scenario throws up another monumental dilemma.
Thomas Roche has already decided he does not want to be their father and the court has upheld that refusal. But if it should be decided these embryos are, in fact, “the unborn”, fully qualified human beings simply awaiting their launch into the world, doesn’t that mean he is their father already? It’s no wonder the Dail has ducked out of legislating on the meaning of life, instead leaving it to the courts to decide.
