Roche v Roche

• Jurisdiction: Ireland
• Judgment Date: 15 December 2009
• Date: 15 December 2009
• Docket Number: [2004 No. 9792P] [S.C. Nos. 469 of 2006 and 59 of 2007]
• Court: Supreme Court

Roche v. Roche

Mary Roche

Plaintiff

and

Thomas Roche, Anthony Walsh, David Walsh and Sims Clinic Limited

Defendants

The Attorney General, Notice Party

[2006] IEHC 359, [2009] IESC 82

[2004 No. 9792P] [S.C. Nos. 469 of 2006 and 59 of 2007]

High Court

Supreme Court

Constitution - Right to life of unborn - Legal status of embryos - Whether frozen embryos "unborn" - In vitro fertilisation - Whether frozen embryos have personal rights - Protection offered - Right to life - Absence of legislative scheme - Role of courts - Constitution of Ireland 1937, Articles 40.3.3ø and 41.

Constitution - Interpretation - Meaning of "unborn" in Eighth Amendment - Legislative history to amendment - Linguistic analysis - Meaning contemplated by People at time of passing of amendment - Constitution of Ireland 1937, Article 40.3.3ø.

Contract - In vitro fertilisation - Withholding of consent to transfer of embryos by husband - Whether express consent to transfer - Whether implied consent to transfer - Withdrawal of consent - Estoppel.

Article 40.3.3ø was inserted into the Constitution by the Eighth Amendment. It provides inter alia:-

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

The plaintiff and the first defendant, a married couple, underwentin vitro fertilisation treatment at a clinic operated by the fourth defendant. Consent forms were signed by the couple in respect of treatment involving egg removal, embryo freezing, embryo transfer and the husband's consent.

Following treatment, six viable embryos were created, three of which were immediately transferred into the plaintiff's uterus and three of which were cryopreserved, i.e., frozen. The transfer was successful and the plaintiff went on to become pregnant and gave birth to a daughter in 2002. Towards the end of that pregnancy, however, marital difficulties arose and the plaintiff and the first defendant legally separated. The issue then arose as to what should happen to the remaining three frozen embryos.

The plaintiff commenced proceedings seeking orders in respect of the frozen embryos including orders vindicating their right to life and to family life, an order for their return to her and an order preventing their destruction.

The High Court (McGovern J.) ruled that the first issue to be decided was the issue in private law as to whether there was a binding agreement between the plaintiff and first defendant as to what should happen to the frozen embryos and whether such an agreement, if found, remained binding on the parties have regard to the marital separation. That matter was decided by the High Court (McGovern J.) (see [2006] IEHC 221, [2006] 3 I.R. 449) where it was held that there was no such binding agreement between the parties.

The remaining issues which arose to be determined were whether the frozen embryos were "unborn" for the purposes of Article 40.3.3ø of the Constitution and whether the plaintiff was entitled to the return of the said embryos to her uterus whether by virtue of Article 40.3.3ø and/or Article 41 of the Constitution or otherwise.

Held by the High Court (McGovern J.), in concluding that the frozen embryos were not "unborn" within the meaning of Article 40.3.3ø, 1, that the Eighth Amendment to the Constitution, giving rise to the wording in Article 40.3.3ø, was for the purpose of making secure the prohibition on abortion expressed in ss. 57 and 58 of the Offences Against the Person Act 1861 and not permitting abortion or termination of pregnancy except where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. If Article 40.3.3ø and the Act of 1861 were concerned with the termination of pregnancy this did not mean that they were concerned with embryos in vitro. No evidence was adduced to establish that it was ever in the mind of the People voting on the Eighth Amendment to the Constitution that "unborn" meant anything other than a foetus or child within the womb.

• A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593; Attorney General v. X[1992] 1 I.R. 1. andBaby O. v. Minister for Justice[2002] 2 I.R. 169applied.

2. That the court could have regard to the legislative history of the Amendment to Article 40.3 but not to debates in the Oireachtas in interpreting the amendment. The court could look at the history or background to the amendment of the Constitution which resulted in Article 40.3.3ø being adopted by the People.

Maher v. Minister for Agriculture [2001] 2 I.R. 139;Campaign to Separate Church and State v. Minister for Education[1998] 3 I.R. 321 and Curtin v. Dáil Éireann [2006] IESC 14 [2006] 2 I.R. 556 applied.

3. That, while Article 40.3.3ø was not to be taken in isolation from its historical background and had to be considered as but one provision of the whole Constitution, this did not mean that the word "unborn" could be given a meaning which was not contemplated by the People at the time of the passing of the Eighth Amendment and which took it outside the scope and purpose of the Amendment.

• P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] IESC 26 [2005] 1 I.R. 294 applied.The State (Healy) v. Donoghue[1976] I.R. 325 andMcGee v. Attorney General [1974] I.R. 284considered.

4. That since the issue of when human life began was so uncertain and not capable of resolution by the court and since frozen embryos were not "unborn" within the meaning of Article 40.3.3ø, the question of rights arising under Article 41 did not arise.

5. That, in the absence of any rules or regulations in this jurisdiction, embryos outside the womb had a very precarious existence. It was a matter for the Oireachtas to decide what steps had to be taken to establish the legal status of embryos in vitro.

Norris v. The Attorney General [1984] I.R. 36considered.

6. That it was the duty of the courts to implement and apply the law, not morality.

• R. (Smeaton) v. Secretary for State for Health[2002] EWHC 610 (Admin) and [2002] EWHC 886 (Admin), [2002] F.L.R. 146 approved.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan and Fennelly JJ.), in dismissing the appeal, 1, that it had not been established by the plaintiff, nor was it a justiciable issue for the court to decide, that the frozen embryos constituted 'life of the unborn' within the meaning of Article 40.3.3ø of the Constitution. It was not for a court of law, faced with divergent views from many disciplines, to pronounce on the truth of when human life began. There was uncertainty or an absence of consensus across the disciplines as to when human life began and the courts did not have at its disposal objective criteria to decide the issue.

2. That the choice as to how life before birth could be best protected and therefore the point which in law that protection should be deemed to commence was a policy choice for the Oireachtas. The function of the court was to make a legal decision of interpretation on an Article of the Constitution.

3. That the proviso in Article 40.3.3ø concerning the equal right to life of the mother was there to ensure respect and protection for her rights in certain circumstances and could not be interpreted as devaluing the equal right to life of the unborn. The argument that simply because the embryo existed outside the womb, it was incapable of falling under the protection of Article 40.3.3ø could not be accepted.

4. That the court was entitled to take judicial notice of the fact, and use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum generally known as "the abortion referendum" in 1983.

5. That the purpose of Article 40.3.3ø was to protect the legal position created in Ireland by s. 58 of the Offences Against the Person Act 1861, which described abortion as the procuring of a miscarriage. As there could be no miscarriage without carriage, "the unborn" referred to a child in the womb not yet born and the State protection of an embryo only arose after implantation.

• R. (Smeaton) v. Secretary for State for Health[2002] EWHC 610 (Admin) and [2002] EWHC 886 (Admin), [2002] F.L.R. 146 considered.

6. That Article 40.3.3ø established a specific constitutional and legal relationship between the unborn and the mother which was to be viewed through the prism of the right to life and only existed where there was a physical connection between the mother and the unborn. As the balancing of the right to life described in Article 40.3.3ø could only take place after implantation, the unborn under Article 40.3.3ø was established only after an embryo was implanted.

7. That it was clear from a purely linguistic analysis of Article 40.3.3ø in both of the national languages that the sub-Article referred to a situation in which the unborn life and the equally valuable life of the mother were integrated or linked so that one might affect the other adversely. Since the right in each case was a right to life, a physical relationship between the mother and the unborn was required and thus the temporal scope of the sub-Article was the period of a pregnancy when the unborn life had been implanted in the mother's womb and was developing there.

8. That the interpretation of the "unborn" as arising after implantation was a harmonious construction of Article 40.3.3ø consistent with other rights under the Constitution. If the frozen embryos were the "unborn" protected by Article 40.3.3ø, the State would have to intervene to facilitate their implantation, which would be inconsistent with the rights of the family under the Constitution.

Tormey v. Ireland [1985] I.R. 289 followed.

9. That there were sound reasons to...