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

• Jurisdiction: Ireland
• Judge: Murray C.J.,Denham J.,Mr. Justice Hardiman.,Mr. Justice Geoghegan,Mr. Justice Fennelly
• Judgment Date: 15 December 2009
• Neutral Citation: [2009] IESC 82
• Court: Supreme Court
• Date: 15 December 2009

Roche v Roche & Ors

BETWEEN

MARY ROCHE

APPLICANT / APPELLANT

AND

THOMAS ROCHE, ANTHONY WALSH, DAVID WALSH

AND

SIMS CLINIC LTD.

DEFENDANTS/RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[2009] IESC 82

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

469/2006

59/2007

THE SUPREME COURT

CONSTITUTION

Right to life of unborn

Legal status of embryos - In vitro fertilisation -Protection offered - Right to life - Whether frozen embryos "unborn" - Whether frozen embryos have personal rights - Absence of legislative scheme - Role of courts - Interpretation - Meaning of "unborn" in Eighth Amendment - Legislative history to amendment - Linguistic analysis - Meaning contemplated by People at time of passing of amendment - R. (Smeaton) v Secretary for State for Health [2002] EWHC 610 (Admin) & [2002] EWHC 886 (Admin) [2002] FLR 146 considered - Constitution of Ireland 1937, Articles 40.3.3 and 41 - Plaintiff's appeal dismissed (469/2006 & 59/2007 - SC - 15/12/2009) [2009] IESC 82

Roche v Roche & Ors

Facts: The appellant and her husband were married in 1994 and had a son in 1997. Thereafter the appellant and her husband had fertility treatment. A consent form was signed by the parties and the defendant signed a document entitled a "Husband's Consent," where he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiffs eggs and the implantation of three embryos. Three other embryos resulted in the plaintiff becoming pregnant with a daughter in 2002. At the end of the pregnancy, marital difficulties arose and the plaintiff sought to have three frozen embryos implanted in her uterus, which the first defendant objected to. The primary issue in the case was whether the constitutional protection afforded to the life of the unborn, as provided in Article 40.3.3 of the Constitution, extended to three fertilised embryos which had frozen and been stored in a clinic. The issue also arose as to whether a contractual agreement had been entered by the parties and whether an estoppel arose on the facts. The High Court had rejected the claim of the appellant on both civil law and constitutional law grounds after hearing extensive evidence.

Held by the Supreme Court in dismissing the appeal on constitutional and private law grounds as pleaded by the appellant per Murray CJ (Denham, Geoghegan, Hardiman & Fennell JJ.), that a linguistic and caselaw based approach lead harmoniously to the same conclusion that the "unborn" within the meaning of Article 40.3.3 was the foetus en ventre sa mere, the embryo implanted in the womb of the mother. The embryo undergoing cryogenic preservation was not so implanted and was incapable of impinging in any way on the right to life of the mother. Per Denham J. (Geoghegan & Hardiman JJ.): that the facts of the case did not establish that there was an implied consent by the husband to the use, implantation of the surplus frozen embryos. There was no contractual relationship between the plaintiff and the defendant. No question of estoppel arose and so the plaintiff was not entitled to succeed in her claim that the first named respondent was estopped from refusing his consent to implantation (Murray C.J. concurring). On the private law grounds raised, the appeal of the plaintiff would be dismissed. Per Murray CJ.: That the protection of the fertilised embryo would lead to the outlawing of widely used methods of contraception. Per Fennelly J. (Hardiman J. concurring): It was disturbing that four years after the publication of the Report of the Commission on Assisted Human Reproduction that no legislative proposal was ever formulated. The frozen embryo was entitled to respect (Murray C.J. concurring). Per Geoghegan J.: That the "unborn" protected by Article 40.3.3 was confined to the unborn within the womb. It had a single purpose and no more. Per Murray C.J.: The courts did not have at their disposal objective criteria to decide the question of when life begun as a justiciable issue. It was not a justiciable issue for the Court to decide that the frozen embryos constituted the life of the unborn within the meaning of Article 40.3.3.

Reporter: E.F.

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40

MCGEE v AG & REVENUE CMRS 1974 IR 284

OFFENCES AGAINST THE PERSON ACT 1861 S58

OFFENCES AGAINST THE PERSON ACT 1861 S59

R v BOURNE 1939 1 KB 687

ROE v WADE 1973 410 US 113

CONSTITUTION ART 40.3.2

AG v X & ORS 1992 1 IR 1 1992 ILRM 401

CONVENTION ON HUMAN RIGHTS & BIOMEDICINE ART 18

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 3

BAKER v CARR 1962 369 US 186

CONSTITUTION ART 41

MEDICAL COUNCIL A GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 6ED 2004 PARA 17.1

MEDICAL COUNCIL A GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 6ED 2004 PARA 24.5

MEDICAL COUNCIL GUIDE TO PROFESSIONAL CONDUCT & ETHICS FOR REGISTERED MEDICAL PRACTITIONERS 7ED 2009

REPORT OF THE CMSN ON ASSISTED HUMAN REPRODUCTION 2005 XI

MARRIAGE OF WITTEN III, IN RE 2003 672 NW 2D 768 (IOWA SUPREME COURT 17.12.2003 DECISION NO 152/03-0551)

DAVIS v DAVIS 1992 842 SW 2D 588

MURRAY v IRELAND & AG 1991 ILRM 465 1991/4/999

HEALTH (FAMILY PLANNING) ACT 1979 S10

R (SMEATON) v SECRETARY OF STATE FOR HEALTH 2002 2 FLR 146

GRISWOLD & BUXTON v CONNECTICUT 1965 381 US 479

CRIMINAL LAW AMDT ACT 1935 S17(3)

CONSTITUTION ART 41.1.2

TORMEY v IRELAND & AG 1985 IR 289 1985/6/1565

DPP, STATE v WALSH & CONNEELY 1981 IR 412 1981/3/388A

O CEARUIL BUNREACHT NA HEIREANN: A STUDY OF THE IRISH TEXT 1999 548

O CEARUIL BUNREACHT NA HEIREANN: A STUDY OF THE IRISH TEXT 1999 549

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

1 JUDGMENT of Murray C.J.delivered on the 15th day of December 2009

2 Murray CJ, Denham J, Hardiman J, Geoghegan J, Fennelly J

3 The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. of the Constitution extends to three fertilised embryos which have been frozen and stored in a clinic.

4 The embryos came into being in the following circumstances. The appellant, who is the plaintiff in the proceedings, and her husband, the first named respondent, were married on the 5 ^th March 1992. In 1994 they sought fertility advice from their general practitioner and were referred to the National Maternity Hospital, Holles Street, Dublin. Investigations in that hospital did not indicate any particular fertilityproblem. After care and treatment in the hospital the appellant became pregnant in January 1997 and a son was born in October 1997. The course of events which then led to the creation of the three frozen embryos the subject of these proceedings were summarised in the judgment of the learned High Court Judge on this issue as follows:

5 "Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant's clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document 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. On the same date the plaintiff and the first named defendant signed a document entitled "Consent to Embryo Freezing". In that document it was stated, inter alia, "we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos." The first named defendant signed a document entitled "Husband's Consent" in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff's eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a "Semen Collection Form" confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled "Consent to Embryo Transfer". In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.

6 As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff's uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.

7 Towards the end of the plaintiff's pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos."

8 It is in these...