Supreme Court dismisses appeal holding frozen embryos do not constitute 'life of the unborn' under Article 40.3.3.

THE SUPREME COURT

469/2006

59/2007

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

MARY ROCHE

APPLICANT / APPELLANT

AND

THOMAS ROCHE, ANTHONY WALSH, DAVID WALSH

AND

SIMS CLINIC LTD.

DEFENDANTS/RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

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

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.

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 5th 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 fertility problem. 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:

"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.

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.

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. "

It is in these circumstances that the issues have arisen as to whether the appellant, as she claims, is entitled to have the frozen

embryos implanted in her womb against the wishes of her estranged husband who does not wish to become the father of another

child.

As indicated above the appellant has asserted that since the embryos enjoy the protection of Article 40.3.3., that provision requires

that their right to life be vindicated by permitting her to have them implanted in her womb.

Article 40.3.3.

This article states:

“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 Irish language version states:

“3°Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomcheart na máthar

chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a

shuíomh lena dhlíthe sa mhéid gur féidir é.”

The language of that provision mirrors to a significant extent the general protection afforded by Article 40.3.1. to the personal rights

of the citizen.

That provides (in the English language version, nothing arising from a comparison of the two language versions):

“The State guarantees in its laws to respect, and , as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen.”

Subsection 3 must be interpreted in the context of Article 40 as a whole and in particular of 40.3.1.

Article 40, under the heading ‘Fundamental Rights’ and the subheading ‘Personal Rights’, commences in its first subsection by stating

that:

“All citizens shall, as human persons, be held equal before the law.”

Thus Article 40, as adopted in 1937, addresses constitutional guarantees for the personal rights of human persons.

That is not to say that Article 40.3, before it was amended following a referendum, in 1983 did not necessarily afford constitutional

protection to life before birth, and there were views expressed in public debate, particularly that related to the referendum, that it

did, reference often being made to the obiter dictum of Walsh J. in McGee v. Attorney General [1974] 1 I.R. 284 at 312 where he

stated:

“On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by

endangering or destroying human life must necessarily not only be an offence against the common good but also against

the guaranteed personal rights of the human life in question.”

Indeed that passage was at the time referred to by some as a reason for advocating that the then proposed constitutional

amendment was unnecessary.

Whatever the merits of that view the Eighth Amendment to the Constitution inserted subsection 3 of Article 40.3. and effectively

extended in express terms to the “life of the unborn” or “mbeo gan breith chun a mbeatha” the constitutional protection for the

personal rights of citizens referred to in Article 40.3.1. It does contain a specific reference to the equal right to life of the mother and

I will address that proviso in due course.

In my view the subsection 3 of Article 40.3. is clear in its intent. It is intended to protect human life before birth. The key words in

the English version are “life of the unborn” and in particular, in my view the much more apt expression, “mbeo gan breith chun a

mbeatha (beo in its genitive case). I think “ceart na mbeo gan breith chun a mbeatha” can be fairly interpreted as meaning the right

of life not yet born to live, or to its life.

The provision does not refer to the right to life of the unborn ‘child’ or ‘foetus’. No doubt because that could have compromised the

meaning of life by raising questions as to when human life, after it had commenced, whether on conception or on implantation, could

be characterised or defined as that of the child or the foetus.

Thus, Article 40.3.3. focuses on human life before birth without exception. It did not purport to confer a right but to protect a right

acknowledged to exist. It commences with the words “The State acknowledges the right to life …” and sought, in a positive rather

than prohibitive form, to protect that life while at the same time it made clear that the provision should not be interpreted as in any

way undermining the right to life of the mother. As I said, I will address that particular proviso in due course, but for the moment,

suffice it to say, in my view the provision seeks to acknowledge that human life before birth and after birth, with the specific

reference to the life of the mother, are worthy of equal value and respect.

So far as the wording in the English version is concerned it refers to “right to life of the unborn” and if the English language permitted

it, it might have fitted more readily with the Irish language version if it referred to “The right to life of the unborn life” but that would

have been, in English, both an inelegant and tautologous form of wording for insertion in the Constitution.

In the course of the appeal it was argued that this provision of the Constitution should be interpreted in the light of the mischief it

was intended to address including the statutory history of the law on abortion.

It is undoubtedly the case that the prohibition on abortion or any weakening of the existing statutory provisions on the prohibition of

abortion was a central part of the debate leading up to the amendment. At that time the law of abortion was governed only by

sections 58 and 59 of the Offences Against the Person Act 1861 under which the procuring of a miscarriage was a crime. In that

context, it is notorious that in public debate the strength or efficacy of that prohibition, as argued by some involved in the debate,

had been weakened by a decision in a case before the English courts in 1939 namely R v. Bourne [1939] 1 KB 687. The dictum in that

case was never followed in this country but nonetheless was apparently used to raise concerns as to how the statutory law might be

interpreted in this country.

If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily

and easily by the adoption of legislation. But the public debate transcended that and the object obviously was, as the result

demonstrates, to place in the Constitution a protection for human life before birth. Of course it is also notorious that another

important part of the public debate was provoked by the decision of the Supreme Court in the United States in the case of Roe v.

Wade 410 US 113 (1973) which found that in certain circumstances a pregnant woman had the right to have an abortion. The fear,

on one side of the debate, was that the courts in this country, and specifically this Court, might at some point in the future decide

that such a right resided in our Constitution.

In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the

issues were addressed at constitutional level.

Having regard to the terms of Article 40.3.3. I do not consider that the Act of 1861 or any possible interpretation of it is particularly

important for the interpretation of that Article.

What is important in this context is not so much the mischief that was being addressed as the manner in which it has been addressed

in the terms of the constitutional provision in issue.

Article 40.3.3. is not prescriptive or prohibitive in its terms.

A prescriptive and prohibitive form of amendment could have been opted for. There was already a parallel for that in the Constitution

concerning the prohibition (since deleted) on divorce which provided: “No law shall be enacted providing for the grant of dissolution of

marriage”. Instead of addressing abortion as such by a prohibitive amendment such as ‘no law shall be enacted permitting an abortion

to be performed’ or the like, reference to the specific mischief, so to speak, was omitted and the provision turned to focus on the

positive protection of human life before birth.

In my view the provision of the Constitution was intended to embrace human life before birth without exception and to extend to it, in

express positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.1 (cited above).

Of course the issue of abortion is a very controversial subject in Ireland and in many countries not only on whether it should be

permitted at all, but if permitted, the circumstances and time when that may be allowed. Article 40.3.3, as adopted by the people in a

referendum, is what applies in this country.

The really important question remains, namely, as to whether the frozen embryos in this case must be considered by this Court as

constituting human life within the meaning of the provision.

In the course of the appeal it was suggested that Article 40.3.3. was not intended, and it should not be interpreted, as applying to

the frozen embryos in this case by reason of the fact that the Article only contemplated life in the womb. Accordingly, before going

on to address the fundamental question as to whether the frozen embryos can be determined by this Court to have the qualities of

human life within the meaning of Article 40.3.3, I propose to address this discrete point.

In support of that argument reference was made to the proviso in the article, namely, “… with due regard to the right to life of the

mother, ….”

Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.

In vitro fertilisation and the creation of embryos, fertilised ova, outside the womb was probably not contemplated at the time. It is

another notorious fact that part of the public debate on these matters, as indeed it had often been in the past, included concern as

to whether the right to life of the unborn might, in certain circumstances, take precedence over the right to life of the mother. The

kind of question posed was whether a doctor faced with a specific constitutional protection for the life of the unborn would be

entitled to give appropriate treatment for a life-threatening condition of the mother when that would result in the death of the

foetus. Obviously, having regard to the terms of the provision, all human life is considered of equal value. Absent any specific

reference in the Constitution to the right to life of the mother, even though her right to life as well as all other persons are covered

by the general provisions of Article 40.3.1. and 2, the proviso in subsection 3 serves to make a clear statement that the right to life

of the mother cannot be treated as having a lesser value than that of the foetus. It had, in my view, no other purpose.

It is still of course the case, even with in vitro fertilisation, that if that statement concerning the right to life of the mother was

desirable or necessary then it is equally so now. Even with in vitro fertilisation, and the associated processes, the evolution post-

implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of

conception, implantation and birth.

As Hederman J., stated, in Attorney General v. X [1992] 1 I.R. at 72, when considering Article 40.3.3:

“The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the

mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal

organism.”

In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her

rights in certain circumstances and cannot logically, in my view, be interpreted as intending to remove protection from human life

because it is outside the womb or to devalue the equal right to life of the unborn because it is outside the womb. Therefore, I cannot

accept the argument that simply because the embryo exists outside the womb that it is excluded from the protection of Article 40.3.

If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably

in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they

would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child. It would appear that

the present state of medico-biological science is such that for the frozen embryos to advance towards birth, implantation in the

womb is required. Whether that science will develop further so as to permit embryos evolve further outside the womb may be a

matter for speculation.

Human Life and Article 40.3.3.

We know that human life begins in the womb. That is not in issue. I speak in the context of a normal pregnancy following what is

referred to as the act of procreation, of sexual intercourse between a man and a woman. The question is: at what point does human

life begin; fertilisation or implantation? Again I suppose it could be said that there was a broad consensus among all disciplines that

human life begins at least at implantation of the embryo in the womb or not long thereafter.

Of course courts take judicial notice, without having to expressly say so, of obvious and accepted truths concerning the nature of

the world we live in. Thus a party, in appropriate proceedings, would not have to prove that a foetus of three months constituted

human life no more than a party would be required to prove the existence of the law of gravity. The issue here has an altogether

different dimension. There is no generally accepted truth or scientific dogma as to precisely when human life begins.

Debate and discourse as to when human life begins has for very many decades, and indeed long before that, focused, though not

always exclusively, on whether human life begins at conception or at implantation.

Inevitably, this featured as part of the public debate on the constitutional amendment but the provision is resoundingly silent as to

when human life should be deemed to begin for the purposes of enjoying its protection.

I think it is safe to assume that at the time when the proposed amendment to the Constitution was being debated and its form being

decided by the Oireachtas that there was no clear view or consensus on the question of when human life begins, or perhaps more

important, when it can be deemed or treated as having begun.

The status of the embryo, that is to say its moral status, and specifically the issue as to when human life begins, continues to be

debated and discussed as part of a virtually world wide discourse in diverse fora including the most prestigious universities and halls of

learning. The many facets of the various sides to that debate, and there are cogent arguments from every perspective, is manifest

from the evidence given by the expert witnesses in the High Court. The range of views expressed or referred to in that evidence

underscores the absence of any broad multidisciplinary consensus as to precisely when life begins and in particular as to whether it

should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for

present purposes.

However, I think it can be said that the human embryo is generally accepted as having moral qualities and a moral status. However

else it may be characterised, the fertilisation of the ovum is the first step in procreation and contains within it the potential, at least,

for life. It has present in it all the genetic material for the formation of life. Its creation and use cannot be divorced from our concepts

of human dignity.

The Council of Europe Convention on Human Rights and Biomedicine with a view to, inter alia, preventing the misuse of biology in

medicine which may lead to acts endangering human dignity prohibits, in Article 18, the creation of human embryos for research

purposes. Article 3 of the Charter of Fundamental Rights of the European Union prohibits the use of embryos for the cloning of human

beings as does the United Nations Declaration on Human Cloning. Such provisions and the fact that many countries regulate and

protect the manner and circumstances in which in vitro embryos may be created and dealt with reflect the recognised moral status of

embryos as being inextricably associated with human dignity. There is inevitably within the ambit of that moral appreciation of the

embryo much debate particularly concerning the parameters of regulatory measures and what should be permitted and what should be

prohibited.

The moral status of embryos and the respect or protection which society may feel they are owed is a different issue to the question

posed, as to when life begins, and I do not propose to comment on it further for the purposes of this judgment.

One comes back to that fundamental issue in this case; namely whether this Court should consider that the frozen embryo is human

life within the meaning of Article 40.3.3.

In the course of the appeal, counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which

must be viewed from many standpoints, moral, philosophical, theological and scientific. It is an issue which also engenders passionate

views on one side or the other in virtually all disciplines.

I do not consider that it is for a court of law, faced with the most divergent if most learned views in the discourses available to it

from the disciplines referred to, to pronounce on the truth of when precisely human life begins.

Absent a broad consensus or understanding on that truth, it is for legislatures in the exercise of their dispositive powers to resolve

such issues on the basis of policy choices.

The learned trial Judge aptly quoted from the report of the Constitution Review Group of the Oireachtas published in July 1996 to the

following effect:

“Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue

to debate when human life begins but the law must define what it intends to protect.”

In my view that sums up the role of the Oireachtas in relation to this matter as the organ of State with at least initial responsibility

for the protection and regulation of constitutional rights.

Therefore, in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life

before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy

choice for the Oireachtas having due regard to the provisions of the Constitution. It is one which falls to be made having taken into

account all the factors and strands of thought which it considers material and relevant.

The courts do not, in my view, have at their disposal objective criteria to decide this as a justiciable issue. Issues are not justiciable

before the courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 369 U.S. 186 (1962), “ a lack of judicially

discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind

clearly for non judicial discretion; …” That is the position in which the Court in this case is placed regarding the question of when life

begins. The onus rests on the Oireachtas to make the initial policy determination so as to define by law the precise point at which

“the life of the unborn” begins to enjoy constitutional protection. The other alternative is an amendment to the Constitution.

Conclusion on this Issue

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the

frozen embryos constitute “life of the unborn” within the meaning of Article 40.3.3.

Contract and Implied Consent

I now turn to make a brief reference to some other issues which were raised by the appellant in the appeal. In the appeal counsel for

the appellant relied on three documents as supporting her contention that the first named respondent had expressly or impliedly

consented to the implantation of the three embryos. The first document is one signed by the appellant and relates to a consent to

treatment involving egg retrieval. Then, on the reverse side of that document there is a consent form to the treatment which is

headed the ‘Husband’s Consent’ and is signed by the first named respondent. Subsequently the appellant and the respondent signed a

third document which was a consent to embryo freezing. I agree with the conclusions of Denham J., Geoghegan J., and Hardiman J.,

that the appellant has not established that there was any contractual engagement between these parties obliging the husband to

consent to the implantation of the frozen embryos nor was there otherwise an implied consent to do so.

Estoppel

In the particular circumstances thus of this case and for the reasons set out in her judgment I agree with Denham J., that the

plaintiff is not entitled to succeed in her claim that the first named responded is estopped from refusing his consent to implantation. I

also agree with Denham J., that there may be circumstances, such as where a woman has no children (although not necessarily just

in such cases) and her only reasonable prospect of bearing a child is the implantation of embryos, could be entitled to such

implantation notwithstanding the absence of the consent of the man concerned to implantation, although he had consented to the

embryos being frozen.

Conclusion

As the appellant has not succeeded on any of the grounds of appeal the appeal should be dismissed.