M.R v T.R, Anthony Walsh, David Walsh and Sims Clinic Ltd

• Jurisdiction: Ireland
• Judge: Hon. Mr. Justice Brian McGovern,Mr. Justice McGovern
• Judgment Date: 15 November 2006
• Neutral Citation: [2006] IEHC 221,[2006] IEHC 359
• Court: High Court
• Docket Number: [2004 No. 9792 P]
• Date: 15 November 2006

[2006] IEHC 221

THE HIGH COURT

[No. 9792P/2004]

R (M) v R (T) & ORS

BETWEEN

M. R.

PLAINTIFF

AND

T. R.

FIRST DEFENDANT

AND

DR. ANTHONY WALSH SITTING AS SIMS FERTILITY CLINIC DUBLIN

SECOND DEFENDANT

AND

DR. DAVID WALSH TRADING AS SIMS FERTILITY CLINIC DUBLIN

THIRD NAMED DEFENDANT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

SWEENEY v DUGGAN 1997 2 IR 531

SHIRLAW v SOUTHERN FOUNDRIES 1939 2 KB 206

LIVERPOOL CITY COUNCIL v IRWIN 1977 AC 239

CARNA FOODS LTD v EAGLE STAR INSURANCE CO IRL LTD 1997 2 IR 193 1997 2 ILRM 481 1998/13/4384

CONTRACT:

Terms

Implied term - Agreement between married couple to undergo in vitro fertilisation treatment - Successful implantation - Remaining embryos frozen - Subsequent marital breakdown and legal separation - Whether agreement in relation to remaining embryos - No express agreement - Whether consent to implantation of remaining embryos could be implied - Principles applicable to implying terms in contract - Presumed intention of parties - Whether term could be implied from nature of contract itself -Sweeney v Duggan [1997] 2 IR 531 and Carna Foods Ltd v Eagle Star Insurance Co(Ireland) Ltd [1997] 2 IR 193 applied - Claim in contract dismissed (2004/9792P -McGovern J - 18/7/2006) [2006] IEHC 221, [2006] 3 IR 449 R(M) v R(T)

the plaintiff and first defendant decided to undergo in vitro fertilisation treatment and signed a consent form to embryo freezing further thereto whereby they agreed to cyropreservation of three of the six embryos that were produced. The first three embryos were implanted in the plaintiff which produced a child for the couple. The parties subsequently legally separated. The plaintiff then decided that she wished to have the remaining frozen embryos implanted so that she could have one or more further children. The first defendant submitted that he had only given consent to the implantation of the first threes embryos and not the frozen embryos, particularly in circumstances where he had separated from the plaintiff and did not want further children with her. The plaintiff brought proceedings alleging that she had a right to have the embryos implanted in her.

Held by McGovern J in holding that there was no agreement, express or implied, as to what was to be done with the frozen embryos in the circumstances that arose that the consent forms signed by the plaintiff and first defendant were vague in important aspects and did not cover contingencies which arose. There was no evidence that the first defendant gave his express consent to the implantation of the three frozen embryos in the plaintiff's uterus. A term could be implied into a contract because of the presumed intent of the parties or because of a rule of law. To imply a term, the contractual provisions alleged had to be necessary, capable of being formulated with precision and terms which both parties would have agreed if suggested at the time of the conclusion of the contract. In light of the evidence, it was not the presumed intention of the parties that the frozen embryos would be implanted in the plaintiff following the success of the first implantation and the legal separation of the parties. It was not established that to give effect to the agreement between the parties it was necessary to imply a term that the frozen embryos would be implanted in the plaintiff. Rather the agreement to participate in the treatment indicated that the frozen embryos would be used if the first implantation failed.

Reporter: P.C.

1 JUDGMENT of the Hon. Mr. Justice Brian McGoverndelivered the 18th day of July, 2006

2 This case concerns the fate of three frozen embryos created by in vitro fertilisation. The plaintiff and the first named defendant married on the 5th March, 1992. They are now separated but remain husband and wife. In 1994, they sought fertility advice from their general practitioner and were referred to Holles St. Hospital. Tests and examinations were carried out on the plaintiff and no obvious problem of fertility was found. In March, 1996, the plaintiff was checked out for a possible ovarian cyst. The plaintiff received some medical treatment and became pregnant and gave birth to a son in October 1997. Shortly thereafter the plaintiff had surgery for an ovarian cyst and she lost two thirds of her right ovary. As she wished to become pregnant again, she was referred to a doctor in Holles St. and had further investigation and treatment which was unsuccessful. She was then seen by Dr. Helen Spillane in July, 2001 and was referred for IVF treatment. The plaintiff and the first named defendant decided to undergo that treatment at the Sims Clinic in Rathgar, Dublin. Their first appointment in the clinic was in October, 2001. On 29th January, 2002, the plaintiff signed a form entitled " CONSENT TO TREATMENT INVOLVING EGG RETRIEVAL". In that form she gave her consent inter alia to the removal of eggs from her ovaries and the mixing of the eggs with the sperm of her husband. On the same date a consent form was signed by the plaintiff and the defendant entitled " CONSENT TO EMBRYO FREEZING." In this document the plaintiff and the defendant agreed to the cryopreservation of their embryos and to take full responsibility on an ongoing basis for these frozen embryos. Also on the 29th January, 2002, the first defendant signed a document entitled " HUSBANDS CONSENT" whereby he acknowledged that he was the husband of the plaintiff and consented to " the course of treatment outlined above". The agreement also expressed his understanding that he would become the legal father of any resulting child. A final consent document was signed by the plaintiff on the 1st February, 2002. This was entitled "CONSENT TO EMBRYO TRANSFER" by which the plaintiff consented to the placing in her uterus of three embryos. It appears from the evidence that the treatment involving egg retrieval is difficult and painful so a practice has evolved in fertility clinics whereby they try to collect a sufficient number of eggs for fertilisation so as to avoid the possibility of the woman having to undergo egg retrieval if the first attempt at implantation of embryos is unsuccessful. In this particular case after the plaintiffs ova were mixed with the first defendant's sperm six viable embryos were created. Three were immediately implanted into the plaintiff's uterus and the remaining three were frozen.

3 The implantation of the three embryos in the plaintiff's uterus was successful because she went on to become pregnant and delivered a daughter on 26th October, 2002. Unfortunately towards the end of that pregnancy marital difficulties arose between the plaintiff and the first named defendant as the first named defendant had entered into another relationship. Attempts at reconciliation failed and the plaintiff and the first named defendant are now living apart.

4 An issue has arisen as to what should happen to the three cryopreserved or frozen embryos. The plaintiff wishes to have the three frozen embryos implanted in her uterus in the hope of becoming pregnant and having a further child or children as the case may be. The first defendant, for his part, does not want the three frozen embryos implanted in the plaintiff's uterus. He says he never agreed to this and that it would be unreasonable and in breach of his rights to put him in the position that he may become father to a child that he doesn't want and in circumstances where he is now separated from the plaintiff. The plaintiff maintains that the first named defendant had expressly or impliedly consented to the three frozen embryos being used for implantation into her uterus.

5 She commenced these proceedings on the 11th June, 2004 and in the proceedings she claims (at paragraph 7 of the Statement of Claim) that the first named defendant withdrew his consent to the release of the frozen embryos and to the further implantation of any of the frozen embryos in the plaintiff's uterus. The pleadings raise many other issues including a claim that the plaintiff is entitled to an order vindicating the right to life of the three embryos, an order vindicating both the plaintiff's and the embryos right to family life, the return of the frozen embryos to the plaintiff and an order preventing the destruction of the embryos.

6 Having heard argument from Counsel for the parties to this Action I have ruled that the first issue which should be decided in this case is an issue of private law, namely whether the plaintiff and the first named defendant had agreed that the said embryos would be returned to the plaintiffs uterus and, if so, whether the said agreement still binds the parties irrespective of the subsequent marital separation. That is the issue which I am deciding today. The resolution of that issue depends on identifying whether there was an agreement, expressed or implied, between the plaintiff and the first named defendant as to what should happen the frozen embryos in the circumstances that have arisen.

EXPRESS AGREEMENT

7 A number of consents were signed by either the plaintiff or the first named defendant and one was signed by both. On the 29th January, 2002, three documents were signed. The first was a consent signed by the plaintiff entitled "CONSENT TO TREATMENT INVOLVING EGG RETRIEVAL". In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant.

8 The plaintiff and the first named defendant signed a document entitled "CONSENT TO EMBRYO FREEZING." In that document they stated "We consent to the cryopreservation (freezing) of our embryos and take full responsibility on an on-going basis for these cryopreserved embryos."

9 The first named defendant signed a document entitled "HUSBAND'S CONSENT" in which he acknowledged "I am the husband of M. R. and consent to the course...