Supreme Court dismisses appeal allowing destruction of surplus IVF embryos without consent.

THE SUPREME COURT

Murray C.J. 469/2006

Denham J. 59/2007

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 delivered the 15th day of December, 2009, by Mr. Justice Hardiman.

The applicant and the first-named respondent, Mary and Thomas Roche, are husband and wife. They were married on the

5th March, 1992, but are now separated. In the mid 1990s, after some advice and treatment for apparent fertility

difficulties, the applicant became pregnant and gave birth to a son in October, 1997. Subsequently she had surgery for an

ovarian cyst and it was necessary to remove two thirds of her right ovary. She had further fertility difficulties which led

to her referral to the Sims Clinic, where the second and third-named respondents carry on a well-reputed infertility

practice. She first attended there in October, 2001. After investigation and advice the plaintiff consented to treatment

involving the retrieval of eggs (ova) from her and the mixing of these eggs with sperm donated by her husband. She

further agreed, as did her husband, to the cryopreservation of the embryos. On the 29th January, 2002, the husband

signed a document entitled “Husband’s Consent” stating that he understood that he would be the father of any child

resulting from the implantation of the embryos in the applicant. On the 1st February, 2002, the applicant signed a

“Consent to embryo transfer” consenting to the placing in her uterus of three embryos. It appears that egg retrieval is

difficult and somewhat painful and the practice which is widely followed, and was followed in the Sims Clinic, was to

collect a sufficient number of eggs for implantation to minimise the risk of the patients having to undergo another session

of egg retrieval if the first attempt at implantation was unsuccessful. In the case of the Roches, a total of six viable

fertilised embryos were produced after the mixing process. Three were implanted and the other three were frozen or

“cryogenically preserved”. This implantation of the first three embryos was the procedure to which the “Husband’s

Consent”, described above, related.

This implantation process was successful, a pregnancy was achieved, and the plaintiff was delivered of a daughter on the

26th October, 2002. By that time, however, unhappy differences had arisen between husband and wife and they

separated and continue to live apart.

The case concerns what is to happen to the three unimplanted frozen embryos. Some years after the birth of their

daughter, and their separation, the applicant decided that she wanted to have the three frozen embryos implanted in her

uterus in the hope of having a further child or children. She made it perfectly clear that she envisaged this, and

maintenance of any resulting child or children, as taking place exclusively at the expense of the first-named respondent.

The husband does not want the frozen embryos implanted, and says that he never agreed to this and it would be

unreasonable and a breach of his human rights and an invasion of his autonomy to compel him to become the father of a

child he does not want in the present circumstances. Nor would it be in the child’s interest to be raised in the

circumstances now prevailing, in the husband’s view.

The proceedings.

This is an appeal from two judgments and the associated orders of the High Court (McGovern J.) of July and November,

2006, respectively, whereby the learned trial judge dismissed two separate claims brought by the applicant; the first was

a claim that she was entitled to have the embryos implanted in her by reason of an agreement between herself and her

husband that this would happen, or alternatively, that the husband was now estopped from denying that such an

agreement existed. This has been referred to at various stages of the proceedings as “the civil claim”. The other claim

was of a constitutional nature: the plaintiff claims that she is entitled to have the embryos implanted in her because they

are within the meaning of the phrase “the unborn” as that phrase is used in Article 40.3.3 of the Constitution. The

implantation of the embryos is said to be necessary to preserve the right of the unborn to life. This is referred to as “the

constitutional claim”.

In relation to the civil claim, I have read the judgment of the learned trial judge, Mr. Justice McGovern, delivered the 18th

of July, 2006. I have also read the transcript of the evidence upon which his judgment is based. I agree with his findings

of fact, most of which were not indeed the subject of serious dispute and in particular his finding (p.9 of the judgment)

that the question of what would happen to the frozen embryos if one of the parties died or if the parties became

separated or divorced was simply never discussed between husband and wife at the time they agreed to seek IVF

treatment. There was accordingly no express agreement on this topic. I agree with the legal conclusions of the learned

trial judge in relation to implied or presumed intention of the parties and with his application of this law to the facts of the

present case. In the result, I would uphold the judgment of the learned trial judge on this aspect of the case for precisely

the reasons he gives in his judgment of the 18th July, 2006 and I consider that it would be otiose if I were to traverse the

same ground.

The constitutional issue.

It is recorded in the judgment of the learned trial judge delivered the 15th November, 2006 that, apart from the civil

issue, the parties identified two other issues which are:

“(a) Whether the frozen embryos are ‘unborn’ for the purpose of Article 40.3.3 of the Constitution of Ireland and

(b) Irrespective of the answer to the first question, is the applicant entitled to the return of the embryos to her

uterus whether by virtue of Article 40.3.3 and/or Article 41 of the Constitution, or otherwise?”

These are novel issues in our jurisprudence. But experience has shown that, given a sufficient period of time, almost

every conceivable set of facts will occur and may give rise to litigation. This is graphically illustrated by the remarkable

factual matrix underlying the case of Attorney General v. X [1992] 1 IR 1. This fact gives point and urgency to certain

observations at the end of this judgment. Science will not stand still waiting for us to update our laws.

Article 40.3.3

It will be seen that the first constitutional issue, and to a large extent the second one as well, turns on this provision of

the Constitution. It has already been judicially observed (in the ‘X’ case cited below, per McCarthy J.) that this sub-

Article, inserted into the Constitution by referendum in 1983, was controversial at the time and was, as McCarthy J. put

it, “historically divisive of our people”. These aspects of the sub-Article are now, however, entirely irrelevant for the

purposes of this case. Article 40.3.3 is a part of our Constitution and must be upheld by the Courts like any constitutional

provision.

What is in question here is whether, on the true construction of the phrase “the unborn” (in the English language version

of the sub-Article: the primary or Irish language version will be discussed below), the phrase “the unborn” includes, or

does not include, the three embryos created by the mixture of the eggs retrieved from the applicant in this case with her

husband’s sperm, and now cryogenically preserved in the Sims Clinic.

I propose now to set out the text of Article 40.3.3, first in the Irish language because that language has primacy in the

event of conflict with the version in the other official language. It is as follows:

“Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomhcheart na

máthar chun a beatha, ráthaíonn sé gan cur isteach lean dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a

chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é”.

The English language text is as follows:

“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.”

I wish also to set out a literal translation of the Irish version of the sub-Article. This is the work of Professor Micheál Ó

Cearúil, the author of Bunreacht Na hÉireann: a study of the Irish text. This book, which is a truly impressive and

extremely useful work of scholarship of the highest order, was written for the all party Oireachtas Committee on the

Constitution and published by that Committee in 1999. The “literal English translation”, given at p.548 of the book, is as

follows:

“The State acknowledges the right of the unborn to their life and, having due regard to the equal right of the

mother to her life, it guarantees not to interfere through its laws with that right and it guarantees further to

protect and assert that right with its laws in so far as it is possible.”

The phrase “the unborn” represents an unusual usage in English and it may be that the primary or Irish version clarifies it.

Professor Ó Cearúil observes (I am omitting purely technical detail and some citations of Irish language sources):

“ ‘Beo” is translated principally as ‘living being’ with the secondary sense of ‘life’.”

He quotes from Irish literary sources, as where the phrase “ag guí ar son na mbeo agus na mairbh”, is translated as

“praying for the living and the dead”, which illustrates this meaning.

It appears from the same discussion, at p.549, that “gan bhreith” means “without birth”. The word “gan/without” is used

in several senses in Irish to mean being deprived of, or not having, something. Thus, “gan phingin”, literally without a

penny i.e. penniless: similarly “bheith gan chlann”, “to be without children”, thus childless. Thus the phrase “na mbeo gan

breith” translates easily enough as “the living without birth”. This is an unusual phrase, either in English or in Irish and

indeed Professor Ó Cearúil comments, for reasons too technical to go into here but fully expounded in his text, that one

would expect further explanatory material and not the sudden finality of “gan breith” which one actually finds. That,

indeed, is the sense which in my view an English speaker has in reading the phrase “the unborn”: one is inclined, however

briefly, to wonder “the unborn what?” But there is no further elucidation, in the language itself, though some may be

gleaned from the context: see below.

It is next necessary to note what it is that the State acknowledges in Article 40.3.3. Here, the Irish and English language

versions seem in perfect accord: it is the right of the “living without birth to their life”, which is not to be interfered with

by law and is, as far as practicable to be asserted and protected by law. Most importantly, these things are to be done

“ag féachaint go cuí do cómhcheart na Máthar chun a beatha…” which I would translate as “looking narrowly to the equal

right of the mother to her life” or, using constitutional language, “having due regard to the equal right of the mother to

her life”.

Accordingly, in a strictly linguistic sense and perhaps more generally, the right of the “living without birth” to their lives is

placed in apposition, perhaps in juxtaposition to the right of the mother to her life. But that linkage makes no sense,

either as a matter of law, logic, language or ordinary human experience unless the life of the “living without birth” is so

connected with the right of the mother to her life that the former is capable of impinging negatively on the latter. If this

were not so it would be quite pointless to condition or qualify the undertaking of the State in relation to the life of the

unborn with a need to consider the mother’s right to her life.

This aspect of Article 40.3.3. is well illustrated in the judgment of Hederman J. in The Attorney General v. X [1992] 1 IR 1,

at p.75. Hederman J., who dissented in the result and would have substantially upheld the order of the High Court

(Costello J.), referred in his judgment to Article 40.3.3 as “The Eight Amendment” and had the following to say:

“The Eighth Amendment does contemplate a situation arising where the protection of the mother’s right to live has

to be taken into the balance between the competing rights of both lives, namely the mothers and the unborn

child’s”. (Emphasis added)

Earlier, at p.72 Hederman J. had said:

“The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some

restriction of another’s freedom but the alternative is the destruction of the unborn life. The termination of

pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with

the mother’s duty to carry out the pregnancy and, in principle, must also outlaw termination of pregnancy”.

(Emphasis added)

These extracts, of course, confirm what seems clear on a purely linguistic analysis of the sub-Article in both the national

languages: that it refers to a situation in which the unborn life and the equally valuable life of the mother are essentially

integrated or at least linked, so that one may affect the other adversely. Moreover, since the right in each case is a right

to life and not to any less readily apprehensible concept such as welfare, best interest or good health, it is clear that the

linkage must be a direct physical one. This leads me to believe that the temporal scope of the sub-Article is, and was

intended to be, the period of a pregnancy when the unborn life has been implanted in the mother’s womb and is

developing there.

Moreover, the person whose right to her life is required to be considered in vindicating the right to life of the unborn is

“the mother”. Since, (as we have seen above), the relationship of the two rights to life must be such that that of the

unborn is capable of impinging on that of the mother, it follows that the mother is the mother of the unborn life. In the

context of the constitutional Article there is nothing else of which she can be the mother.

It thus follows that the mother is the mother of the “unborn” and that their physical relationship is such that the right to

life of the unborn is capable of impinging on the right to life of the mother. This, it appears to me, requires a physical

relationship. The only relevant physical relationship is that of pregnancy.

The Attorney General’s position.

On the hearing of this appeal, as in the High Court, the plaintiff Mary Roche contended that the fertilised but unimplanted

embryo was within the meaning of the phrase “the unborn”. The first respondent, Thomas Roche, contended for the

contrary proposition. While one does not doubt the sincerity of each contention, it is of course the case that the

contentions of each of these primary parties reflect their respective views as to the result which should be arrived at in

this action. In those circumstances a particular significance attaches to the views of the Attorney General who has of

course no personal interest but who has been joined in the proceedings because of the constitutional issues raised.

The Attorney General expressed no view as to whether or not there was an agreement between husband and wife as to

what should happen to the unimplanted embryos. But he submitted that, if there was an agreement on that issue, the

agreement could be enforced by the court. On the constitutional issue however the Attorney General expressed a strong

and unambiguous view. The “surplus embryos”, he submitted, had no status arising from the Constitution and specifically

they were not within the meaning of the phrase “the unborn”. The Attorney said that it would be open to the people by

constitutional amendment to protect embryos from fertilisation, but they did not do this in passing the Eight Amendment

of the Constitution in 1983.

I propose now to leave to one side briefly the purely linguistic analysis of the sub-Article, and to consider its legal nature.

Article 40.3.3 as interpreted in the cases.

This exercise is an easier one than the linguistic analysis of the Articles because there exists a number of authoritative

decisions on the question. In the case of Attorney General v. X [1992] 1 IR 1 McCarthy J. said:

“[The amendment’s] purpose can be readily identified - it was to enshrine in the Constitution the protection of the

right to life of the unborn, thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 [The

Offences against the Person Act of that year: the section prohibits abortions] or [from] otherwise, in general,

legalising abortion.”

More recently, in the case of Baby O v. the Minister for Justice [2002] 2 I.R. 169 Keane C.J., giving the unanimous

judgment of the Court, said at pp. 181 and 182 that:

“The passage from Article 40.3.3 on which counsel relied, as explained by the judgments of the majority in this

court in Attorney General v. X. [1992] 1 I.R. 1, was intended to prevent the legalisation of abortion either by

legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the

mother which could only be avoided by the termination of the pregnancy.”

It is not necessary here to set out in any detail the reasons why those who promoted the amendment thought it

necessary to take active steps to prevent the legalisation of abortion whether by legislation or by judicial decision. It

related, in some degree, to the perception of the proponents of the Amendment to the Constitution which became Article

40.3.3 of the possibly baneful effects of such cases as McGee v. The Attorney General [1974] 1 IR 284, Griswold v.

Connecticut [1965] 381 U.S. 479 and, most of all, Roe v. Wade [1973] 410 U.S. 113. These cases led certain proponents

of a constitutional amendment in Ireland to embark upon a sometimes very learned analysis of them and to conclude that

the emphasis, not least in the Irish case of McGee, on the authority of the family and the rights of its members to

privacy, might contain the seeds of the judicial development of a right, however limited, to abortion.

Abortion was and is of course illegal in Ireland by virtue of s.58 of an Act of 1861, the Offences against the Person Act.

This reads as follows:

“Every woman being with child who, within intent to procure her own miscarriage, shall unlawfully administer to

herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with a

like intent, and whosoever with intent to procure the miscarriage of any woman, whether she be or be not with

child, shall unlawfully administer to her or cause to be taken by her a poison or other noxious thing, or shall

unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony.”

I wish to express my agreement with the analysis of this Section, and of its statutory and Common Law precursors,

contained in the judgment of Geoghegan J. in this case.

Accordingly, two quite different analyses of Article 40.3.3 - a linguistic one and one based on the authorities - lead

harmoniously to the same conclusion. The subsequent decisions of the courts, two of which are cited above, describe the

purpose of the sub-Article as being to prevent the introduction of abortion either by legislation by the Oireachtas or by

judicial decision. The legal position thus sought to be protected was that created in Ireland by s.58 of the Offences

against the Person Act, 1861, which described abortion as the procuring of a miscarriage. It seems obvious that, as the

medical authority cited by Denham J. in this case puts it with startling clarity, “There can be no miscarriage without

carriage” and “Bodily carriage implies some kind of integration with the body [of the carrier].”

Precisely the same conclusion follows from a linguistic analysis of the text of the sub-Article, either in Irish or in English. A

capacity of the life of the unborn to impinge on the right to life of the mother, which is an essential postulate of the sub-

Article, equally depends on some form of integration of the life of the unborn with the bodily structures of the other life in

question, that of the mother.

In my view each of these approaches leads harmoniously and inevitably to the conclusion that the “unborn”, “na mbeo

gan breith”, is the foetus en ventre sa mere, the embryo implanted in the womb of the mother. It is manifest that the

embryo undergoing cryogenic preservation is not so implanted and is incapable of impinging in any way on the right to life

of the mother or of having any physical effect whatsoever on her body or its structures.

Article 40.3.1.

I do not consider that the applicant can rely, in the alternative, on Article 40.3.1. I remain to be convinced that this

provision, with its express reference to the rights of “citizens” and to such specific rights as “good name” and “property

rights”, extends or was ever intended to extend to a fertilised but unimplanted ovum.

Be that as it may, if the earlier provision (i.e. Article.40.3.1) did extend to a fertilised ovum, and to a foetus, that fact

would appear to make Article 40.3.3 redundant. Without necessarily relying on canons of construction such as inclusio

unius exclusio alterius, I would point out that, apart from the redundancy of the Article 40.3.3 that would follow from the

plaintiff’s contention, Article 40.3.1 contains no express reference at all to the right to life of the mother. This seems a

remarkable omission (for the reasons given by Hederman J. and quoted above), if the earlier sub-Article applied to a

fertilised ovum so as to confer a right to implantation in the mother’s uterus, there would be no explicit protection of the

position of the mother. But the mother, who is a life in being, and a citizen, is undoubtedly herself within the protection of

Article 40.3.1. The failure explicitly to acknowledge her position in that sub-Article strongly suggests to me that, for the

reasons set out below, the position of a fertilised embryo is not within the meaning or the intent of Article 40.3.1.

Article 40.3.1., as interpreted by the plaintiff, applies to a situation which was unimagined and unimaginable in 1937. The

felt need for what became Article 40.3.3 was suggested to its proponents by legal and medical developments in the

1970s. It is a grave anachronism to seek for reference to such things forty years earlier. The language, the law and the

science of the debate alike have changed out of recognition over that period.

The foregoing conclusions are sufficient to allow me to decide that I would dismiss the appeal on the constitutional

grounds as well, for the reason that the embryos now being cryogenically preserved are not “the unborn” within the

meaning of Article 40.3.3. I wish however to add a number of observations.

Firstly, the fact that the embryos in question in the present case are not within the relevant sub-Article of the

Constitution, while it is fatal to litigation founded on the theory which has informed this action, does not of course mean

that such embryos should not be treated with respect as entities having the potential to become a life in being. In the

course of the argument on this appeal, the court heard of various legal provisions in other countries based precisely on

such respect for the embryo: it appears that a number of European countries severely limit the number of fertilised

embryos that can be produced in the course of IVF treatment. The disadvantage to this, of course, is that it increases

the likelihood that, in the event of a failure to produce a pregnancy with the implanted embryo(s), that the patient will

have to undergo the uncomfortable and apparently sometimes painful process of retrieval of ova again. It is also

necessary to bear in mind that a very large number, in fact the great majority, of fertilised embryos are lost in the

ordinary course of nature and that that event is not generally regarded, medically, clinically, socially, legally or privately,

as equivalent to the death of a life in being. It is also necessary to bear in mind, as Mr. Hogan S.C. for the applicant did

not conceal, that if respect for the fertilised embryo were carried to the point of equating it to a life in being, that view

would lead to the outlawing of one of the most widely used methods of contraception which operates by the prevention

of implantation.

The above are all serious considerations which, fortunately, the court is not called upon to resolve here. They are,

primarily, matters for the Legislature. Indeed, it was a notable feature of the appeal that while the Notice of Appeal

criticised the learned trial judge as having erred “in finding that the court was not concerned with the question of when

life begins”, the appellant’s written submissions, at paragraph 49 positively says that for the purpose of the case “the

court does not have to pronounce on questions as to when human life begins”.

But the fact that difficulties are raised does not absolve the legislature from the obligation to consider the degree of

respect due to fertilised embryos and to act upon such consideration “by its laws”. There has been a marked reluctance

on the part of the legislature actually to legislate on these issues: the court simply draws attention to this. That is all it

can do. That is what McCarthy J. did, apparently in vain, in the X case eighteen years ago. But the Court does so as

seriously and as urgently as it can.

The issue is all the more urgent because, of course, scientific developments in the area of embryology and the culturing

of stem cells will not stand still. It has been very recently suggested that it may shortly be possible to develop human

sperm from such cells.

If the legislature does not address such issues, Ireland may become by default an unregulated environment for practices

which may prove controversial or, at least, to give rise to a need for regulation. This may be particularly urgent having

regard to the views expressed on behalf of the Attorney General on the hearing of this appeal.

I would dismiss the appeal.