Who owns frozen embryos following separation?

The question of who owns frozen embryos after a couple breaks up is about to be raised in the High Court in Dublin according to this story in The Sunday Times.

While together, the married couple had three frozen embryos stored in the Sims fertility clinic in Rathgar, Dublin. Now the couple has separated but the wife wants the embryos, produced during IVF treatment, implanted in her womb. The husband has refused.

The story echoes that of Natalie Evans and Howard Johnston which resulted in a European Court of Human Rights ruling last week. See this story in The Guardian for the details.Evans had her ovaries removed in 2001 because of pre-cancerous tumours. Since then she and her partner thave separated. She wants to have the embryos implanted in her womb as this provides her with her only chance of having a child. But Johnston has withdrawn his permission and the court has ruled that she cannot proceed without his consent.Explaining his position, Johnston told the Guardian: "Any child that may have resulted from this treatment, I would have been the father of that child but [would] have had nothing to do with its upbringing."I would have a child somewhere with no way of knowing how it was brought up. The way I look at it was that I have the right to start a family if and when I want to."

When a similar case arose in the United States a few years ago the judge ruled that if the frozen embryos represented a person's sole chance of ever becoming a parent then there could be an exception to the rule that consent on both sides was required, according to Dr Gillian Lockwood chairwoman of the British fertility Society ethics committee, quoted in this roundup of expert views in The Guardian.

In that same article, psychologist Oliver James appears to have confirmed Howard Johnston's fears: "I don't see that this child would have anything to do with him, apart from physically resembling him....I think he may have a mistaken belief in how much genetics play [a part] in determining who we are."Almost everybody who looks at the plight of Natalie Evans has sympathy for her and wishes that Howard Johnston would take a more sympathetic view. But how far should the ability to dispense with the consent of a partner go?"What is she fighting for, exactly?" asked Madeleine Bunting and Catherine Bennett in The Guardian."

The right of all women to use embryos created by assisted conception against the wishes of the estranged biological father? If so, it is a right that would, in fairness, have to be extended to similarly implacable would-be fathers, hoping to take spare embryos created with their own estranged partners and have them implanted - disregarding any lack of consent - in their new women partners, or in surrogates, then raised without the participation of the biological mother. No one, if they considered the interests of children created on this basis, could endorse that particular change in the law."

According to the Sunday Times the Irish case differs from the British one because the Republic of Ireland has a constitution which guarantees the right to life of the unborn child. The decision of the High Court which no doubt will end up in the Supreme Court will therefore be a landmark one.

Last year the Commission on Assisted Human Reproduction (members) (report) recommended that the donation of sperm ova and embryos should be allowed in the Republic. It suggested that embryos outside the womb should have no constitutional and legal protection. Children born through surrogacy should be presumed to be the children of the couple who commissioned the treatment in the first place. Naturally, the government has done nothing about this. It is likely that in this area as in other tricky issues concerning reproduction in the past (contraception for instance) the making of law will be left largely to the courts.

And aside from the ethical issues involved there are others: if a woman is allowed to use the embryos donated by her former husband will the resulting child have inheritance rights vis-a-vis her former husband? Will it be possible to pursue the former husband for child support payments?