The issues raised by the use of assisted reproductive technologies take on an increased level of complexity in Ireland, which has a constitutional amendment acknowledging the “right to life of the unborn.” Ratified in 1983, the eighth amendment was passed to prevent the legalization of abortion. Its vague language, however, does not define the meaning of the word unborn. This ambiguity has led to controversy surrounding assisted reproduction in Ireland.

In 2006, Mary and Thomas Roche brought this controversy into the Irish courts. In 2002, while married, the couple underwent in vitro fertilization (IVF) treatment which resulted in the creation of six embryos, half of which were implanted into Ms. Roche and the other half were frozen, presumably for use in the future. By the end of 2002, the couple, who had one child from the first round of IVF, had divorced.

In 2006, Mary Roche took her ex-husband to court because he would not consent to have these same embryos implanted in her. She argued that the embryos had a right to life; conversely, he argued that he had a right not to become a parent against his wishes. The court sided with Thomas Roche but Mary Roche appealed the decision to the Ireland Supreme Court late last year. A decision is expected soon.  

As a recent article in the journal Philosophy, Ethics, and Humanities in Medicine pointed out, the Roche case asks that we consider two questions:

1. Is a frozen embryo “unborn,” and if it is, does it have the same right to life as an embryo which has already been implanted in a uterus?

2. Does Thomas Roche have a right not to become a parent?

First, the possibility that a frozen embryo could be considered an “unborn” child, with a right to life, is troubling for both philosophical and practical reasons. This way of thinking is a variation of the potentiality argument, which states that a fetus, or in this case a frozen embryo, has the potential to become a human being and as such is deserving of certain rights. This argument is often summoned by those who are opposed to abortion. 

This argument, however, is not precise enough to be used in the context of assisted reproduction technologies. The natural course of a frozen embryo is to remain in its current stage of development. Only with significant manipulation – thawing, preparation, implantation, and a successful gestation – will the frozen embryo become a human being. Just because something might someday become a human does not mean that it should be afforded the same protections as a human or even a developing fetus on its path to humanity.

Secondly, the case requires us to weigh the right of Mary Roche to become a parent against the right of Thomas Roche not to become one. There is strong legal precedent in the United States and Europe supporting the individual who does not wish to become a parent. It is worth considering the world Mary Roche’s child would enter: what sort of a relationship would the child have with his or her genetic father? Would Thomas Roche be obligated to pay child support?

The rights of an embryo and the rights of the individuals whose egg and sperm were used to create it cannot be considered separately. There has been much discussion and limited consensus reached on the meaning of the Irish Eighth Constitutional Amendment. Ideally, the language should be clarified to indicate when protection for the “unborn” begins.

However, until that occurs, we are in a tough spot. Even if we assume that the embryo has a right to life; this right cannot be considered separately from Thomas Roche’s desire not to become a parent. What can be done?

Given the vagueness of the amendment, an ideal solution would be one that respects the hypothetical right to life of the embryo while simultaneously respecting Thomas Roche’s right not to become a parent. Mandating the donation of the embryo to another couple who, for whatever reason, cannot supply their own gametes to form an embryo, would seem to respect both rights. Donating extra embryos is common practice in the U.S. for couples who do not wish to dispose of them.

Furthermore, all couples around the world who create excess embryos should be required to undergo a rigorous consent process that demands that they consider the implications of creating surplus embryos. The goal of such a process would not be to get written consent detailing what should happen in every instance (people can and do change their minds), but rather to start a dialogue and help the couples explore the challenging legal, ethical, and moral issues involved in assisted reproductive technologies. 

Rebecca Marmor is a medical student at Case Western Reserve University.