Roche -v- Roche & ors, [2009] IESC 82 (2009)

Docket Number:469/06 & 59/07
Party Name:Roche, Roche & ors
Judge:Denham J.

THE SUPREME COURT[Appeal No: 469/2006

Appeal No: 59/2007]

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.


Mary RocheApplicant/Appellant


Thomas Roche, Anthony Walsh,

David Walsh and Sims Clinic LtdDefendants/Respondents


Attorney General Notice Party

Judgment delivered the 15th day of December, 2009 by Denham J.

  1. The central issue in this case is whether three embryos, which have been frozen and stored in a clinic, are the "unborn" and as such protected by Article 40.3.3° of the Constitution of Ireland.

  2. This is an appeal brought by Mary Roche, the plaintiff/appellant, referred to in this judgment as "the plaintiff", from the decision of the High Court refusing her claim for the release to her of three frozen embryos for implantation.

  3. The plaintiff was married to Thomas Roche, the first named defendant/respondent, referred to in this judgment as her husband, in 1992.

  4. The plaintiff and her husband had fertility difficulties, but, after some treatment, in 1997 the plaintiff and her husband had their first child, a son, born to them.

  5. Subsequently, further fertility issues arose and in 2002 the plaintiff had in vitro fertilisation treatment, "I.V.F.", at the Sims Clinic Ltd., the fourth named defendant/respondent, "the Clinic". Six embryos resulted. Three of the embryos were implanted in the plaintiff's uterus and she became pregnant. The remaining three embryos were frozen and placed in storage with the Clinic, and are the three embryos in issue in this case.

  6. A number of documents were signed in 2002 by the plaintiff and her husband. These documents will be considered later in the judgment.

  7. As a result of the implantation of the embryos in 2002, the plaintiff gave birth to a second child, a daughter, in October, 2002.

  8. Shortly after the birth of their daughter, the plaintiff and her husband separated. Years later the plaintiff requested that the three frozen embryos be released to her, as she wishes to have them implanted in her uterus. The Clinic refused to release them in the absence of consent from her husband, which was refused. Thus the plaintiff has brought these proceedings.

  9. In January, 2006 the second, third and fourth named defendants/respondents, the doctors and the Clinic, were released from any further participation in the proceedings, unless required, on their undertaking to make all reasonable efforts to preserve the three embryos pending the final determination of these proceedings. The Attorney General was joined as a notice party.

  10. This case raises both private and public law issues. (a) The private law issue was described as a contractual matter. (b) The public law issue is a constitutional issue, as it is the plaintiff's case that the frozen embryos constitute the "unborn" within the meaning of Article 40.3.3˚ of the Constitution of Ireland, and that the State is obliged to facilitate their implantation.

    High Court

  11. On the 18th July, 2006, the High Court held: (i) that there was no agreement between the plaintiff and her husband as to what was to be done with the frozen embryos in the circumstances that have arisen; and (ii) that her husband had not entered into an agreement which required him to give his consent to the implantation of the three frozen embryos.

  12. On the 15th November, 2006, the High Court declared that the frozen embryos were not the "unborn" within the meaning of Article 40.3.3˚ of the Constitution. The learned High Court judge held that it was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.


  13. The plaintiff has brought this appeal against both judgments and orders of the High Court. In essence, the plaintiff's grounds of appeal are that the High Court erred, inter alia:- (i) in finding that there was no agreement as to what would happen to the frozen embryos in circumstances where the marriage had broken down;

    (ii) in finding that there was no evidence that the husband gave his express consent to the implantation of the embryos;

    (iii) in finding that it was not the presumed intention of the parties that the embryos would be implanted in circumstances in which the first implantation procedure had been successful and their marriage had broken down;

    (iv) in finding that a term of the contract requiring that the frozen embryos be implanted could not be derived from the nature of the agreement between the parties;

    (v) in finding that the husband was not estopped from denying he had consented to the transfer of the embryos;

    (vi) in his findings regarding the purpose of the Eighth Amendment to the Constitution;

    (vii) in finding that there was no evidence to establish that it was ever in the mind of the People voting on the Eights Amendment that "unborn" meant anything other than foetus or child in the womb;

    (viii) in finding (at least by implication) that "unborn" in Article 40.3.3° meant foetus or child in the womb exclusively;

    (ix) in finding that the clear purpose of the Eighth Amendment was to deal with the issue of termination of pregnancy and with that issue alone, whereas it was intended to confer positive rights and protection to the unborn above and beyond the issue of abortion per se;

    (x) in finding that the Court was not concerned with the question of when life begins;

    (xi) in finding that no evidence was adduced to enable the Court to hold that the word "unborn" in Article 40.3.3° includes embryos outside the womb;

    (xii) in finding that the word "unborn" in Article 40.3.3° does not include embryos in vitro and therefore does not include the three frozen embryos in this case;

    (xiii) in finding that the plaintiff was not entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution;

    (xiv) in holding that that learned High Court judge could not determine when life began for the purpose of the word "unborn" while (a) disregarding the weight of the scientific evidence on that question advanced before the court, and (b) holding (at least by necessary implication) that life began at implantation for the purpose of Article 40.3.3˚.14. The Attorney General has cross-appealed from so much of the order as awarded to the plaintiff and her husband their costs, on the grounds that the general rule should be applied, that costs should follow the event, and that there were no exceptional circumstances arising in the case so as to exclude the general rule on costs.


  14. Oral and written submissions were made on behalf of the plaintiff by Ms. Inge Clissman S.C. and Mr. Gerard Hogan S.C..

    15.1 On the private law issue, in essence, it was submitted that the husband consented to the I.V.F. procedure in 2002 when he executed the necessary consent form and his consent is irrevocable as against the plaintiff. It was submitted that this is underscored by the fact that the embryo transfer forms required only the wife's consent and did not require his consent, and that his consent was not formally sought although he was present at the implantation. It was submitted that in any event he was precluded and estopped by his conduct from denying or revoking his consent in circumstances where he allowed his wife to go through the I.V.F. procedure, and that he is also precluded from asserting a right to revoke that consent or to veto the future use of the embryos. It was submitted that the learned trial judge erred in law in holding that the husband's consent was either required or (in the alternative) that he was entitled, in the circumstances, to refuse to give such consent.

    15.2 On the constitutional issue it was submitted that:- (a) The evidence overwhelmingly supported the view that the embryos constitute unborn human life. That there are powerful arguments in favour of that view, and that it has been endorsed by a significant segment of the medical and scientific community, even if that community is divided on the question. (b) Given this state of affairs, it was submitted that the embryos should be regarded as embryonic human life and, hence, the "unborn" for the purpose of Article 40.3.3˚. It was submitted as unlikely that the People intended to protect only that unborn life that was conclusively established as such or an alternative (and equally) arbitrary date, e.g. implantation. (c) So far as the argument advanced by the husband to the effect that he should not have paternity imposed on him is concerned, this turns on whether the embryos constitute unborn human life. If they do, then he is already the father of these unborn human lives. (d) If this Court concludes, as submitted it must in light of the evidence adduced, that the embryos constitute the "unborn" for the purposes of Article 40.3.3˚, then this Court must vindicate that right by taking all practicable steps to protect that right. It was submitted that the Court should direct the Clinic to facilitate the plaintiff in having the embryos inserted in her uterus.

    Paragraph 49 of the plaintiff's submissions stated pithily the essence of her argument on this issue. In answer to the question as to whether a frozen embryo constitutes the unborn it was submitted:-"49. The word "unborn" ("beo gan breith") is, unfortunately, not defined. The literal translation of the Irish text may be rendered as "life not born". It is submitted that the phrase refers to all human life which is capable of being born. For this purpose the Court does not have to pronounce on questions as to when human life begins. It is sufficient for present purposes to say that where (at least) a large body of medical and scientific opinion consider that embryos do constitute such unborn human life, that is sufficient for this purpose. The People must be taken to have wished to defend and protect such life, even the medical community is divided on the question as to when such life actually starts. Had the People wished such protection to commence from a later (and, it is submitted, an essentially...

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