Supreme Court dismisses appeal holding frozen embryos lack constitutional right to life protection under Article 40.3.3.

THE SUPREME COURT

Appeal No: 469/2006

Appeal No: 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 -

Attorney General

Notice Party

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

1. I agree that the appeal should be dismissed. I am satisfied that the first-named respondent is not bound by any

contract or agreement or by the application of equitable principles to permit the frozen embryos to be implanted. In this

respect, I agree with the judgment of Geoghegan J. and with the reasons he gives.

2. I am also satisfied that the frozen embryos do not enjoy the protection of the guarantees provided to the right to life

of the unborn by Article 40.3.3 of the Constitution. I agree, for the reasons given in the judgments of Hardiman J. and

Geoghegan J. that Article 40.3.3 does not extend to or include frozen embryos which have not been implanted. I do not

think that the constitutional provision should be considered only as being intended to reinforce the effect of section 58 of

the Offences against the Person Act, 1861. The people, in adopting the Eighth Amendment to the Constitution employed

distinct, new and independent language.

3. Finally, I join Hardiman J. in expressing concern at the total absence of any form of statutory regulation of in vitro

fertilisation in Ireland. It is disturbing, to use no stronger word, that some four years after publication of the Report of the

Commission on Assisted Human Reproduction, no legislative proposal has even been formulated. Counsel for the Attorney

General argued before us that there is no law or public policy regarding the protection of frozen embryos, in short that

they have no legal status. As I interpret these submissions, the organs of the State have no present intention to propose

any legislation. It is obvious that this is extremely difficult and sensitive subject-matter. It is controversial for all of the

reasons mentioned by Hardiman J. and Geoghegan J. Nonetheless, it cannot be denied that the fertilisation of the ovum

brings into existence, outside the womb, the essential unique components of a potential new individual human person. I

agree with the judgments of Hardiman J. and Geoghegan J. that the frozen embryo is entitled to respect. This is the least

that can be said. Arguably there may be a constitutional obligation on the State to give concrete form to that respect. In

default of any action by the executive and legislative organs of the State, it may be open to the courts in a future case

to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution.