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Download Bar Review Volume 19 Journal of the Bar of Ireland • Volume 19 • Issue 1 • February 2014 Why Teach Restorative Justice? THOMSON REUTERS ROUND HALLTM REUTERS/Yuriko Nakao CIVIL PROCEDURE IN THE CIRCUIT COURT Karl Dowling & Karen McDonnell KEY FEATURES • Includes an in-depth analysis of the day-to-day activities dealt with by the Circuit Court, including; Intoxicating Liquor Licenses, Probate Actions, Landlord & Tenant, Planning, Employment and Family Law Proceedings • Helps you fully understand the role of the County Registrar • Handy format that is ideal to bring to Court with you, making sure you always have the civil practice and procedure information at your fingertips and saving you from making 2ND costly mistakes EDITION NEW TO THIS EDITION • New decisions dealing with procedural matters • Recent legislation, including the Land And Conveyancing Law Reform Act 2009 and Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 November 2013 • Examines all significant amendments to Circuit Court Rules 9781858007182, €265 PLACE YOUR ORDER TODAY QUOTING REFERENCE 1272603A DELIVERY roundhall.ie [email protected] 1 800 937 982 (Ireland) TO IRELAND 0845 600 9355 (UK) +44 (0) 1264 388 570 (International) Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Cover Illustration: Brian Gallagher T: 01 4973389 Editor: Eilis Brennan BL E: [email protected] W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin Editorial Board: [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Brian Kennedy SC Patrick Dillon Malone SC Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Volume 19, Issue 1, February 2014, ISSN 1339-3426 Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Contents Jerry Carroll Consultant Editors: 2 Embryos in Limbo Dermot Gleeson SC Patrick MacEntee SC JESSICA BARTAK-HEALY BL Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC 6 The Extradition and Expulsion of the Mentally Ill: a Schizophrenic Approach? The Bar Review is published by Round Hall in association with JOANNE WILLIAMS BL The Bar Council of Ireland. For all subscription queries 9 The Right of a Social Welfare Claimant to seek a Revision of contact: Round Hall a Decision Thomson Reuters (Professional) DEREK SHORTALL BL Ireland Limited 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 i Legal Update Fax: + 353 1 662 5302 E: [email protected] web: www.roundhall.ie 13 Tanzanian Judiciary in Dublin for Training in Arbitration Subscriptions: January 2014 to December 2014—6 issues 14 Why do I teach Restorative Justice to Law students? Annual Subscription: €297.00 + VAT JANINE GESKE For all advertising queries contact: David Dooley, Direct line: + 44 20 7393 7775 E: [email protected] 18 The Development of the Irish Equality Guarantee by the Directories Unit. Sweet & Maxwell Superior Courts in 2013 Telephone: + 44 20 7393 7000 DR. ELAINE DEWHURST Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review February 2014 Embryos in Limbo JESSICA BARTAK-HEALY BL Introduction to Embryo Transfer”.6 The IVF procedure created six viable embryos, three were implanted in the Plaintiff’s uterus and This article will examine the potential benefits and three were frozen. The Plaintiff gave birth to a daughter on disadvantages of introducing in vitro fertilisation (IVF) the 26th October, 2002. legislation in Ireland. It addresses the question as to what Marriage difficulties began to appear in the couple’s extent legislation would impact on Irish IVF clinics, and 1 relationship towards the end of the pregnancy and the gamete providers in the wake of the Roche case. The consent first named Defendant had begun another relationship. forms in both Ireland and England and Wales are also The couple commenced living apart and were judicially examined and compared in detail. Lastly the disadvantages of separated. There was an issue as to what would happen to the the Human Fertilisation and Embryology Authority (HFEA) remaining frozen embryos as each party had different views. governing IVF in England and Wales are explored. The Plaintiff wished for the remaining embryos implanted in her uterus in the hope of becoming pregnant again. The Is regulation needed in Ireland to govern the area Defendant wanted them destroyed and did not want to of assisted reproduction? become a father to any child that would be born as a result Research conducted suggests that legally binding guidelines of the procedure. The Defendant argued that he never agreed are required in this area to avoid confusion and cases like to the implantation of the frozen embryos, however, the MR v TR.2 This issue has been live since IVF was established Plaintiff argued that he had expressly or impliedly consented in Ireland in 19853 and to date there has been no proposals for the frozen embryos to be implanted into her uterus. Mrs brought before the Dáil. The Department of Health in Roche also claimed that there was a violation of her right Ireland is in the process of preparing an options paper for the under Article 41° of the Constitution, namely the respect government on how to legislate for assisted reproduction in for privacy and family life. She also claimed that there was a Ireland due to the debates surrounding the Roche case and the violation of the embryo’s right to life under Article 40.3.3°. Report of the Commission on Assisted Human Reproduction This case brought huge challenges for the High Court as there in 2005. However, it is uncertain when they will produce a was ‘no judicial or legislative framework in place to address report and what direction it will take. the medical, scientific, or ethical uncertainties.’7 MR v TR centred around the fate of three frozen embryos The preliminary ruling in this case focussed on the consent produced by in vitro fertilisation. The Plaintiff, Mrs Roche the Defendant had given for any future use of the frozen and the first named Defendant, Mr Roche were separated embryos and if this was implicit in the contract document at the date of the trial but remained husband and wife. The that acknowledged that he would take full responsibility Plaintiff wanted to become pregnant with a second child for any outcome of the IVF procedure.8 The Defendant after she had surgery to remove two thirds of her right ovary expressed that he did not want any more children with the due to an ovarian cyst. The couple decided to undergo their Plaintiff and that there was no agreement as to what would treatment at the Sims Clinic in Rathgar, Dublin (the fourth happen to the frozen embryos. The Court ruled in favour of named Defendant). the Defendant and held that there was no express or implied Before the treatment, the Plaintiff signed a form consent for the embryos to be implanted into the Plaintiff’s headed “Consent to Treatment Involving Egg Retrieval” uterus. The Irish Fertility Society said in relation to this case and “Consent to Embryo Freezing”.4 Also on that day, the that ‘Each episode of treatment requires the consent of all husband signed the form entitled “Husband’s Consent”,5 parties involved and this consent may be revoked by any party where he agreed that he was the husband of the Plaintiff should their circumstances change. We cannot accept that and was the legal father of any child resulting from the either partner should be coerced into any fertility treatment, fertilisation of the Plaintiff’s eggs. The Defendant signed even if he or she has already had treatment which has led to the form entitled “Semen Collection Form” and “Consent the creation of the embryos’.9 Nevertheless, there is a counter argument. If one agrees 1 [2009] IESC 82. to undergo a procedure such as IVF which is completely 2 ibid. elective, then the intended outcome is to produce a baby 3 IVF has been carried out in Ireland since 1985 when Professor Harrison was the first person to perform IVF in Ireland. J Shannon, ‘The Birth of Fertility Treatment’ The Medical Independent, July 6 ibid. 22, 2010. Available at: http://www.medicalindependent.iepage. 7 ES Sills & SE Murphy, ‘Determining the Status of Non- aspx?title=the_birth_of_irish_fertility_treatment Cited in A Transferred Embryos in Ireland: A Conspectus of Case Law and McMahon, ‘The Legal Status of Embryos in vitro in Ireland – a Implications for Clinical INF Practice’ (2009) Philosophy, Ethics, “precarious” position’ (2011) Medico-Legal Journal of Ireland and Humanities in Medicine, 4:8 at 1. 17(1) 33, 33. 8 ibid at 12. 4 ibid. 9 A Healy, ‘Sense of a Case Just Beginning, Not Ending’ The Irish 5 MR v TR & Ors [2006] IEHC 359, paragraph ‘The Facts’. Times (Dublin, 19 July 2006) 4. Cited in Sills & Murphy ibid. Page 2 Bar Review February 2014 and become parents. If one party then wishes to avoid the clinics in Ireland that offer assisted reproductive treatment.16 agreed result of becoming a parent after contracts have been Their opinions seem quite uniform in that they want standard signed and eggs have been fertilised, the party seeking to consent forms for all procedures for all clinics.
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