Roche v Roche: Some Guidance for Frozen Embryo Disputes

• Author: Andrea Mulligan Sch
• Position: LLB (Dub), LLM Candidate, Harvard Law School
• Pages: 168-181

ROCHE

VROCHE:

SOME GUIDANCE

FOR

FROZEN

EMBRYO

DISPUTES

ANDREA

MULLIGAN

SCH*

Introduction

With

one

in

six

Irish

couples suffering

from

infertility,

more

and

more

people

are

turning

to

in

vitro

fertilisation

(IVF) to

try

to

have

a

baby.'

During

the

IVF

procedure

eggs

are

removed

from

the

woman's

body

and

combined

with

sperm

from

her

partner

or

a

donor.

The

resulting

embryos

are

then

implanted

in

the

woman's

uterus

and,

if

successful,

will

result

in

pregnancy.

Because the

process

of

egg

retrieval

is

particularly

unpleasant

and

the

chance

of

successful

birth

is

relatively

low,

surplus

embryos

are

usually

created

and

cryogenically

frozen. In

many

cases

these

are

never

implanted

and

instead

are

stored

indefinitely.

2

IVF has

taken

place

in

Ireland

since

1986

but

despite

its

prevalence

it

remains entirely unregulated

by

law.

It

is

governed

only

by the

guidelines

laid

down

by the

Medical

Council.

3 One

major impediment

to

regulation

was

uncertainty

as

to

the

application

of

Article

40.3.30

of

the

Constitution

to

the embryos

created

during

the

process.

This section,

inserted

by

the

Eighth

Amendment

in

1983,

reads:

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.

4

*

LLB

(Dub), LLM Candidate,

Harvard

Law

School.

1

Kitty

Holland,

"Infertility: the

last

great taboo"

The

Irish

Times,

29

September

2009.

2

Some

Irish

IVF

clinics

enter

into

agreements

under which

the

clinic

retains

the

right

to

thaw

the embryos

without

transfer (ie

destroy

them)

under

certain circumstances.

Sarah

Ellen

Murphy

and Eric

Scott

Sills,

"Determining

the

Status

of

Non-transferred

Embryos

in

Ireland:

A

Conspectus

of

Case

Law

and

Implications

for Clinical

IVF

Practice"

(2009)

Philosophy,

Ethics

and

Humanities

in Medicine

4:8

.

3

The

Medical Council,

Guide

to

Professional

Conduct

and

Ethics

for

Registered

Medical

Practitioners,

7

th

ed.,

2009.

Bunreacht

na hEireann, Article

40.3.3'.

©

2010

Andrea Mulligan

and

Dublin

University Law

Society