Appeal No: 469/2006 & No: 59/2007

IpsofactoJ.com: International Cases [2009] Part 13 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Mary Roche

- vs -

Thomas Roche

Murray CJ

Denham J

Hardiman J

Geoghegan J

Fennelly J

15 DECEMBER 2009


Judgment

Justice Denham

  1. The central issue in this case is whether three embryos, which have been frozen and stored in a clinic, are the "unborn" and as such protected by Article 40.3.3° of the Constitution of Ireland.

  2. This is an appeal brought by Mary Roche, the plaintiff/appellant, referred to in this judgment as "the plaintiff", from the decision of the High Court refusing her claim for the release to her of three frozen embryos for implantation.

  3. The plaintiff was married to Thomas Roche, the first named defendant/respondent, referred to in this judgment as her husband, in 1992.

  4. The plaintiff and her husband had fertility difficulties, but, after some treatment, in 1997 the plaintiff and her husband had their first child, a son, born to them.

  5. Subsequently, further fertility issues arose and in 2002 the plaintiff had in vitro fertilisation treatment, "I.V.F.", at the Sims Clinic Ltd., the fourth named defendant/respondent, "the Clinic". Six embryos resulted. Three of the embryos were implanted in the plaintiff's uterus and she became pregnant. The remaining three embryos were frozen and placed in storage with the Clinic, and are the three embryos in issue in this case.

  6. A number of documents were signed in 2002 by the plaintiff and her husband. These documents will be considered later in the judgment.

  7. As a result of the implantation of the embryos in 2002, the plaintiff gave birth to a second child, a daughter, in October, 2002.

  8. Shortly after the birth of their daughter, the plaintiff and her husband separated. Years later the plaintiff requested that the three frozen embryos be released to her, as she wishes to have them implanted in her uterus. The Clinic refused to release them in the absence of consent from her husband, which was refused. Thus the plaintiff has brought these proceedings.

  9. In January, 2006 the second, third and fourth named defendants/respondents, the doctors and the Clinic, were released from any further participation in the proceedings, unless required, on their undertaking to make all reasonable efforts to preserve the three embryos pending the final determination of these proceedings. The Attorney General was joined as a notice party.

  10. This case raises both private and public law issues.

    1. The private law issue was described as a contractual matter.

    2. The public law issue is a constitutional issue, as it is the plaintiff's case that the frozen embryos constitute the "unborn" within the meaning of Article 40.3.3° of the Constitution of Ireland, and that the State is obliged to facilitate their implantation.

    High Court

  11. On the 18th July, 2006, the High Court held:

    1. that there was no agreement between the plaintiff and her husband as to what was to be done with the frozen embryos in the circumstances that have arisen; and

    2. that her husband had not entered into an agreement which required him to give his consent to the implantation of the three frozen embryos.

  12. On the 15th November, 2006, the High Court declared that the frozen embryos were not the "unborn" within the meaning of Article 40.3.3° of the Constitution. The learned High Court judge held that it was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.

    Appeal

  13. The plaintiff has brought this appeal against both judgments and orders of the High Court. In essence, the plaintiff's grounds of appeal are that the High Court erred, inter alia:-

    1. in finding that there was no agreement as to what would happen to the frozen embryos in circumstances where the marriage had broken down;

    2. in finding that there was no evidence that the husband gave his express consent to the implantation of the embryos;

    3. in finding that it was not the presumed intention of the parties that the embryos would be implanted in circumstances in which the first implantation procedure had been successful and their marriage had broken down;

    4. in finding that a term of the contract requiring that the frozen embryos be implanted could not be derived from the nature of the agreement between the parties;

    5. in finding that the husband was not estopped from denying he had consented to the transfer of the embryos;

    6. in his findings regarding the purpose of the Eighth Amendment to the Constitution;

    7. in finding that there was no evidence to establish that it was ever in the mind of the People voting on the Eights Amendment that "unborn" meant anything other than foetus or child in the womb;

    8. in finding (at least by implication) that "unborn" in Article 40.3.3° meant foetus or child in the womb exclusively;

    9. in finding that the clear purpose of the Eighth Amendment was to deal with the issue of termination of pregnancy and with that issue alone, whereas it was intended to confer positive rights and protection to the unborn above and beyond the issue of abortion per se;

    10. in finding that the Court was not concerned with the question of when life begins;

    11. in finding that no evidence was adduced to enable the Court to hold that the word "unborn" in Article 40.3.3° includes embryos outside the womb;

    12. in finding that the word "unborn" in Article 40.3.3° does not include embryos in vitro and therefore does not include the three frozen embryos in this case;

    13. in finding that the plaintiff was not entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution;

    14. in holding that that learned High Court judge could not determine when life began for the purpose of the word "unborn" while

      1. disregarding the weight of the scientific evidence on that question advanced before the court, and

      2. holding (at least by necessary implication) that life began at implantation for the purpose of Article 40.3.3°.

  14. The Attorney General has cross-appealed from so much of the order as awarded to the plaintiff and her husband their costs, on the grounds that the general rule should be applied, that costs should follow the event, and that there were no exceptional circumstances arising in the case so as to exclude the general rule on costs.

    Submissions

  15. Oral and written submissions were made on behalf of the plaintiff by Ms. Inge Clissman S.C. and Mr. Gerard Hogan S.C..

    1. On the private law issue, in essence, it was submitted that the husband consented to the I.V.F. procedure in 2002 when he executed the necessary consent form and his consent is irrevocable as against the plaintiff. It was submitted that this is underscored by the fact that the embryo transfer forms required only the wife's consent and did not require his consent, and that his consent was not formally sought although he was present at the implantation. It was submitted that in any event he was precluded and estopped by his conduct from denying or revoking his consent in circumstances where he allowed his wife to go through the I.V.F. procedure, and that he is also precluded from asserting a right to revoke that consent or to veto the future use of the embryos. It was submitted that the learned trial judge erred in law in holding that the husband's consent was either required or (in the alternative) that he was entitled, in the circumstances, to refuse to give such consent.

    2. On the constitutional issue it was submitted that:-

      1. The evidence overwhelmingly supported the view that the embryos constitute unborn human life. That there are powerful arguments in favour of that view, and that it has been endorsed by a significant segment of the medical and scientific community, even if that community is divided on the question.

      2. Given this state of affairs, it was submitted that the embryos should be regarded as embryonic human life and, hence, the "unborn" for the purpose of Article 40.3.3°. It was submitted as unlikely that the People intended to protect only that unborn life that was conclusively established as such or an alternative (and equally) arbitrary date, e.g. implantation.

      3. So far as the argument advanced by the husband to the effect that he should not have paternity imposed on him is concerned, this turns on whether the embryos constitute unborn human life. If they do, then he is already the father of these unborn human lives.

      4. If this Court concludes, as submitted it must in light of the evidence adduced, that the embryos constitute the "unborn" for the purposes of Article 40.3.3°, then this Court must vindicate that right by taking all practicable steps to protect that right. It was submitted that the Court should direct the Clinic to facilitate the plaintiff in having the embryos inserted in her uterus.

    Paragraph 49 of the plaintiff's submissions stated pithily the essence of her argument on this issue. In answer to the question as to whether a frozen embryo constitutes the unborn it was submitted:-

    49.

    The word "unborn" ("beo gan breith") is, unfortunately, not defined. The literal translation of the Irish text may be rendered as "life not born". It is submitted that the phrase refers to all human life which is capable of being born. For this purpose the Court does not have to pronounce on questions as to when human life begins. It is sufficient for present purposes to say that where (at least) a large body of medical and scientific opinion consider that embryos do constitute such unborn human life, that is sufficient for this purpose. The People must be taken to have wished to defend and protect such life, even the medical community is divided on the question as to when such life actually starts. Had the People wished such protection to commence from a later (and, it is submitted, an essentially arbitrary) date such as implantation, Article 40.3.3 would surely have said so.

  16. The submissions on behalf of the husband were advanced by Mr. John Rogers, S.C. and they included the following.

    1. As regards the private law issue, what was termed the contractual issue, it was submitted that it was the husband's position that there was no express or implied consent on his part to the transfer of the three frozen embryos to the plaintiff’s uterus.

      Should this Court hold otherwise, it was submitted that the withdrawal of consent is entirely admissible.

    2. On the constitutional issue, on the meaning and status of the term "unborn" for the purposes of Article 40.3.3°, it was submitted on behalf of the husband that the concept of the unborn must involve the capacity or potential to be born and this capacity arises only upon the occurrence of implantation. Article 40.3.3°, it was submitted, does not support the plaintiff's case so as to confer on a pre-implantation embryo a constitutional right to life.

  17. Submissions, written and oral, were made on behalf of the Attorney General by the Mr. Donal O'Donnell, S.C. and Mr. Brian Murray, S.C..

    1. On the private law issue, counsel on behalf of the Attorney General brought the Court's attention to authorities in other jurisdictions which stressed the primacy of contractual agreements in this area.

    2. On the constitutional issue, it was submitted that the frozen embryos in this case do not constitute the "unborn" within the meaning of Article 40.3.3° of the Constitution, with the consequences that the State is not obliged to facilitate their implantation. Defining the unborn so as to include pre-implantation embryos, as submitted on behalf of the plaintiff, would contravene the text, purpose, and spirit of Article 40.3.3°. It was submitted that this article was inserted into the Constitution for the purpose of prohibiting the termination of pregnancies. A consideration of the intention of the People in enacting the Eighth Amendment suggests that it did not confer constitutional rights on the pre-implantation embryo. It was submitted that the plaintiff's appeal ought to be dismissed; that dismissal of the appeal would leave to the People and their representatives the capacity to resolve the question of the appropriate treatment of such embryos in the light of modern conditions.

  18. Current situation of the embryos On the 24th June, 2005, the Clinic wrote to the plaintiff and her husband pointing out that they had received no payment for the storage of their embryos since June, 2003. The Clinic wrote that the failure of payment, despite a request for payment, "is a breach of unit policy which renders our implied storage contract null and void." The Clinic stated that as an act of altruism it would maintain the integrity of the embryos for another year but pointed out that neither the Clinic nor its agents had any further responsibility for the embryos. The stored embryos may be removed from the storage area and transferred only with the consent of the plaintiff and her husband. The current situation is that the second and third named defendants and the Clinic have indicated that they will abide by the court order.

    The Private law issue: Contract?

  19. The first issue on this appeal is the private law matter, referred to as having a contractual aspect. Mr. Gerard Hogan S.C., for the plaintiff, argued that there was express consent by the husband to the implantation of the three embryos, or that there was implied consent, and/or that the husband is estopped from refusing to give his consent in the circumstances of the case.

    20. There are three documents upon which this submission is grounded. I shall consider each of the documents in turn.

    1. There is a document as follows:-

      Medical Programmes directed by:

      Anthony Walsh, MD, MRCOG, MRCPI David Walsh, MD, MRCOG

      CONSENT TO TREATMENT INVOLVING EGG RETRIEVAL

      Full name of Woman .... [Mary Roche] ....

      Address .... [address given]

      1.

      I consent to (delete/complete as applicable):

      (a)

      Being prepared for egg retrieval. [this is ticked]

      (b)

      The removal of eggs from my ovaries with the aid of:

      laparoscopy

      ultrasound [the term "ultrasound" is circled]

      (c)

      the administration of any drugs and anaesthetics which may be found necessary in the course of the procedures; [this is ticked]

      (d)

      the mixing of the following (tick each column as required):

      ( ) of my eggs ( ) with sperm of my husband/partner

      [both of the above are ticked]

      ( ) 3 eggs only ( ) all of my eggs

      ( ) anonymous donor's eggs ( ) an anonymous donor's sperm;

      (e)

      the use of micromanipulation techniques

      2.

      I have discussed with .... [Dr Walsh] .... the procedures outlined above.

      I have been given information both orally and in writing about them.

      3.

      I have been given a suitable opportunity to take part in counselling about the implications of the proposed treatment.

      Patient's signature ....

      Date ....

      [The plaintiff has signed the document and it is dated 29.01.02]

      Doctor's signature ....

      Date ....

      [There is a signature and it is also dated 29.01.02]

    2. I have considered this document carefully. It is a type of form. It addresses the relationship between the two doctors, named at the top of the sheet, and the plaintiff. It is a consent form for the plaintiff in relation to the medical treatment being offered by the doctors. The husband is not a party to this form. The form addresses issues related to information for the plaintiff, and consent by the plaintiff to the medical procedures referred to. It is not a contract between the plaintiff and the husband. There is no question of an offer or acceptance or consideration, or an intention to create a legal contract, leading to an agreement between the plaintiff and her husband.

    3. On the reverse side of that consent form is another consent form. The document is as follows:

      Medical Programmes directed by:

      Anthony Walsh, MD, MRCOG, MRCPI David Walsh, MD, MRCOG

      HUSBAND'S CONSENT

      1.

      I am the husband of .... [Mary Roche] .... and I consent to the course of treatment outlined above. I understand that I will become the legal father of any resulting child.

      2.

      Any other remarks ....

      Signature of husband .... Date ....

      [The document is signed by the husband and it is dated 29.01.02]

      Full name in block capitals .... [Blank]

      Address .... [Blank]

    4. The above document is a consent form signed by the husband, consenting to the course of treatment to the plaintiff. It addresses issues relevant to the medical treatment of the plaintiff and relates to the relationship, in this context, between the doctors and the husband. It also states that he understands that he will become the legal father of any resulting child. There is no question of a contractual relationship being established by this document between the plaintiff and her husband. There is no offer or acceptance, nor consideration, nor intention to create legal relations. It is a medical consent form signed by the husband and it is relevant to his relationship with the medical programmes and personnel.

    5. Also, on the 29th January, 2002, the plaintiff and her husband signed a third document. This was a consent to embryo freezing. The document states as follows:-

      Medical Programmes directed by:

      ANTHONY WALSH, MD, MRCOG, MRCPI

      DAVID WALSH, MD, MRCOG

      CONSENT TO EMBRYO FREEZING

      Full names of couple .... Mary & Thomas Roche ....

      Address .... [short address is given]

      We consent to the cryopreservation (freezing) of our embryos and take full responsibility on an on-going basis for these cryopreserved embryos.

      Patients Signatures .... Date ....

      .... Date ....

      [The plaintiff and the husband signed the document and dated it 29.01.02]

      Doctor's signature .... Date ....

      [There is a signature which is indecipherable and it is dated 29.01.02]

  20. This is another consent form. Neither this form nor the two previous forms are documents drawn up and establishing a legal agreement between the plaintiff and her husband. They are consent forms presented by the Clinic to the plaintiff and to her husband and they relate to consent to actions taken by the Clinic. They are signed by the plaintiff and her husband, as medical consent forms. They were formulated to protect and assist the Clinic and the second and third named defendants, in the treatment programme.

  21. The plaintiff and the husband underwent the treatment with the hope that they might have a child. The process resulted in six embryos. Three of the six embryos were implanted in the plaintiff's uterus and subsequently a child was born to them. The remaining three embryos were frozen. It is the three surplus embryos which have given rise to these proceedings. The position of these three embryos was not addressed in the documents, except in the consent to embryo freezing form.

  22. When the treatment commenced it would not have been known how many eggs would be fertilised, and the consent to embryo freezing related to any surplus embryos. The document is simply that - a consent to embryo freezing. It provided for the situation where, as in fact happened in this case, surplus embryos were produced. None of the documents are contracts creating or evidencing an agreement between the plaintiff and her husband expressing consent to the implantation of these three surplus embryos in the plaintiff's uterus. I am satisfied that the fact that the husband consented to the treatment and to the freezing does not establish a consent so as to enable the plaintiff to avail of the surplus frozen embryos for implantation.

  23. The consent given by the husband was to the treatment then planned for the I.V.F., and to the freezing of any surplus embryos.

  24. The documents are forms which were provided by the Clinic to the plaintiff and her husband to obtain their consent to the procedures. They are in line with the guidelines of the Medical Council.

  25. In "A Guide to Ethical Conduct and Behaviour", "the Guide", approved and published by the Medical Council in 2004, on the issue of informed consent, it was stated, in paragraph 17.1:-

    It is accepted that consent is implied in many circumstances by the very fact that the patient has come to the doctor for medical care. There are however situations where verbal and if appropriate written consent is necessary for investigation and treatment. Informed consent can only be obtained by a doctor who has sufficient training and experience to be able to explain the intervention, the risks and benefits and the alternatives.

  26. In the section of the Guide relating to reproductive medicine, paragraph 24.5 was headed "In-Vitro Fertilisation (I.V.F.)" and stated:-

    Techniques such as I.V.F. should only be used after thorough investigation has failed to reveal a treatable cause for the infertility. Prior to fertilisation of an ovum, extensive discussion and counselling is essential. Any fertilised ovum must be used for normal implantation and must not be deliberately destroyed.

    If couples have validly decided they do not wish to make use of their own fertilised ova, the potential for voluntary donation to other recipients may be considered.

  27. The documents in this case are consistent with those guidelines, which envisaged that there should not be intentional destruction of embryos. In the 7th Edition 2009 Guide to Professional Conduct and Ethics for Registered Medical Practitioners, published recently by the Medical Council, on the matter of assisted human reproduction the guidelines state:-

    20.1

    Assisted human reproduction treatments, such as In Vitro Fertilisation (IVF), should only be used after thorough investigation has shown that no other treatment is likely to be effective. You should ensure that appropriate counselling has been offered to the patient and that the patient has given informed consent before receiving any treatment.

    20.2

    Assisted reproduction services should only be provided by suitably qualified professionals, in appropriate facilities, and according to international best practice. Regular clinical audit and follow-up of outcomes should be the norm.

    20.3

    If you offer donor programmes to patients, you must consider the biological difficulties involved and pay particular attention to the source of the donated material. Such donations should be altruistic and non-commercial. You should keep accurate records for future reference.

    Thus there is a change in these new guidelines in relation to the fertilised ovum. This illustrates the lack of regulation in the area. The situation in this case has arisen because of the creation of the three surplus embryos. These circumstances arise in other jurisdictions also. Some states have taken steps to prohibit the keeping of surplus embryos. Other states make specific provision in legislation for surplus embryos. There is no legislation in Ireland on the issue, nor any other form of regulation on assisted human reproduction.

  28. The Report of the Commission on Assisted Human Reproduction, 2005, at p.XI, stated that:-

    The surplus embryos not used for immediate transfer may be preserved in a frozen state (cryopreservation) for further use by the couple who produced them, thereby avoiding the necessity of repeating the risky and uncomfortable procedure of ovarian stimulation. (Sperm may also be reserved in a frozen state. At present ova are not routinely frozen). If frozen embryos still remain after the couple has completed their treatment, the available options include: donation to another couple, donation for research and being allowed to perish.

    The Commission recommended that a regulatory body should be established by an Act of the Oireachtas to regulate assisted human reproduction and that appropriate guidelines should be put in place. Clearly it is a matter for the Oireachtas to regulate the sensitive and important area of reproductive medicine.

  29. I am satisfied that the consent of the husband to the I.V.F. treatment and to the freezing of embryos was not an agreement to the implantation, years later, of the surplus frozen embryos. There was no agreement, between the plaintiff and the husband, as to the surplus embryos.

  30. The absence of an express agreement, and the absence of regulation in the circumstances of the case, lead to the issue of an implied agreement being raised by counsel for the plaintiff.

    Implied Agreement

  31. I am satisfied that the facts of the case do not establish that there was an implied consent by the husband to the use, the implantation, of the surplus frozen embryos. Without going into the evidence in detail in this judgment, two extracts illustrate the situation. On Day 2 the plaintiff gave the following evidence:-

    Q

    Can you tell the Court when do you recall the first discussion taking place about the embryos between yourself and your husband?

    A

    It was before he left the second time. I asked him: 'What are we going to do with our frozen embryos?' and his initial reaction was at the time: 'We will destroy them' and I said 'We can't do that, the clinic don't allow that'. We didn’t speak of it again.

    Later it transpired from the plaintiff's evidence that they had a further discussion on the frozen embryos in 2005. In her evidence on Day 2 the plaintiff was asked and answered as follows:

    Q

    Did you have any discussion with your husband about seeking to recover the embryos yourself with a view to having them transferred and for the purposes of implantation?

    A

    I did bring up the question again, I think it was in 2005. We were at a mediation session regarding an issue and I brought it up again. I asked him what are we going to do with our three frozen embryos and his reply was that we would donate them and the money that we would get from the donation, we would give it to a children's charity. My reply to him was 'You want to sell our children?' He said 'You don't get any money when you donate frozen embryos', and that was the last discussion I had with him.

    It is clear that there was at no time an implied agreement, or consent by the husband, to the implantation of the surplus frozen embryos.

    Estoppel

  32. Counsel submitted that once one had regard to the sequence of events, the consent forms, the implantation of three embryos, the freezing of the three surplus embryos, in a situation where the husband knew that there may be surplus embryos, that the husband is precluded by his conduct from refusing to give consent to the implantation of the three surplus embryos in the plaintiff's uterus.

  33. This submission is made in relation to a situation where, I am satisfied, there was neither an express nor an implied consent or intent to have the three surplus embryos implanted. There was no intent, or advance decision, in relation to any surplus embryos. There is no question, therefore, of enforcing any earlier expressions of choice. As there was no decision on the matter there is no issue of withdrawal of consent arising for consideration.

  34. The facts of a case are critical to any analysis of estoppel. In this case there was the I.V.F. treatment, the implantation of three embryos and the successful birth of a daughter. This was the plaintiff and her husband's second child, a son having been born to them earlier. There was consent to freezing surplus embryos but there was no agreement or choice made as to what was to be done with any surplus embryos. There was no agreement between the plaintiff and her husband. The plaintiff and her husband are now separated. The plaintiff wishes to have the surplus embryos implanted, while her husband does not wish them to be implanted. In the circumstances of this case, on the facts and the law, no issue of estoppel arises.

  35. The finding, set out later in this judgment, on the meaning of the term the "unborn" in Article 40.3.3, with reference to the three frozen embryos, is relevant to this analysis. I have been mindful of that finding in my decision.

  36. There being no agreement between the parties, another approach advocated was that of the contemporaneous mutual consent test. The Court's attention was drawn to In Re the Marriage of Witten III 672 N.W. 2M 768 (Iowa 2003), a decision of the Iowa Supreme Court where frozen embryos had been created by the parties with consent. However, the marriage broke down and then the wife wished to use the embryos but the husband did not. The Court held:-

    That brings us, then to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition. We have already explained the grave public policy concerns we have with the balancing test, which simply substitutes the court as decision maker.

    However, this approach is not relevant to, nor should it be applied in, this case as there was no initial agreement as to what should happen to the surplus embryos other than that they be frozen. Consequently no issue of change of mind arises. However, it is of interest to note the test applied by that Court. It held:-

    A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilised eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction .... Turning to the present case, we find a situation in which one party no longer concurs in the parties' prior agreement with respect to the disposition of their frozen embryos, but the parties have been unable to reach a new agreement that is mutually satisfactory. Based on this fact, under the principles we have set forth today, we hold that there can be no use or disposition of the Wittens' embryos unless Trip, (the husband) and Tamera (the appellant) reach an agreement ....

    That test does not arise in the circumstances of this case as the parties did not make an agreement as to the surplus frozen embryos. However, the mutuality required in the test is noteworthy.

  37. A different test was applied in Davis v Davis 842 S.W. 2d 588, 597 (Tenn. 1992), where the Tennessee Supreme Court addressed the issue of disputes as to frozen embryos between divorcing couples. It stated, at paragraph 112:-

    In summary, we hold that disputes involving the Disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning Disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favour of using the preembryos to achieve pregnancy should be considered. However, if the party seeking control of the preembryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.

  38. As indicated earlier, I am satisfied that there was no prior agreement in this case to the implantation of the surplus frozen embryos. However, even if the husband had made such agreement, which he did not, I would not regard it as irrevocable. All the circumstances would have to be considered carefully. If a party had no children, and had no other opportunity of having a child, that would be a relevant factor for consideration. In this case the plaintiff and her husband already have two children. It is also relevant that they are now separated. Another important factor is that the husband does not wish to have further children with the plaintiff. If the embryos were implanted he would be the father of any subsequent children, with constitutional rights and duties.

  39. The right to procreate was recognised in Murray v Ireland [1991] 1 I.L.R.M. 465. There is an equal and opposite right not to procreate. In the circumstances of this case, while the plaintiff and her husband have family rights, the exercise of a right not to procreate by the husband is a proportionate interference in all the circumstances of the case to the right of the plaintiff to procreate.

    Conclusion on civil issue

  40. Each case requires to be considered on its own facts. I conclude on the civil issue that there was no agreement, express or implied, as to the use of the three surplus frozen embryos. Even if there was an agreement, which I am satisfied there was not, I consider that it would not be irrevocable. Further, in the circumstances, the principle of estoppel does not apply to estopp the husband from refusing to give his consent to the implantation of the frozen embryos.

  41. I would dismiss the plaintiff's appeal on all the grounds raised in relation to the private law issue.

    Constitutional Issue: the "unborn"

  42. For the purpose of analysing the constitutional issue I shall recap, shortly, the basic facts. The plaintiff and her husband experienced fertility difficulties. With treatment the plaintiff became pregnant and the couple had a son born to them in 1997. The plaintiff wished to have further children and she attended the Clinic for I.V.F. treatment in 2001. In January 2002 the plaintiff and her husband signed the documents set out earlier in this judgment. Six viable embryos were created in the Clinic following the mixing of the plaintiff's eggs with the husband's sperm. Three of the embryos were implanted in the plaintiff's uterus, she became pregnant, and a daughter was born in 2002. The plaintiff and her husband have had marital difficulties and are now separated. At issue in this case are the three surplus embryos which were frozen and stored at the Clinic.

  43. The plaintiff submits that the three surplus embryos constitute the "unborn" for the purposes of Article 40.3.3° of the Constitution and that the State, (which includes the Court), is obliged to facilitate the implantation of the embryos into the plaintiff's uterus having regard to the constitutional duty to protect unborn life. On behalf of the husband it was submitted that the concept of the "unborn" must involve the capacity or potential to be born and that this capacity arises only upon the occurrence of implantation; that Article 40.3.3° does not support the plaintiff's case so as to confer on an embryo pre-implantation a constitutional right to life. On behalf of the Attorney General it was submitted that the frozen embryos do not constitute the "unborn" within the meaning of Article 40.3.3°, and that consequently the State is not obliged to facilitate their implantation.

  44. The term "unborn" is to be found in Article 40.3.3° of the Constitution. The 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 word "unborn" is not defined in the Constitution.

  45. This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland. The question raised is whether the term "unborn" in the Constitution includes the three frozen embryos in issue in this case. It is a matter of construing the word in the Constitution to determine its constitutional meaning.

  46. This is not an arena for attempting to define "life", "the beginning of life", "the timing of ensoulment", "potential life", "the unique human life", when life begins, or other imponderables relating to the concept of life. This is not a forum for deciding principles of science, theology or ethics. This is a court of law which has been requested to interpret the Constitution and to make a legal decision of interpretation on an article in the Constitution.

  47. Article 40.3.3° was inserted into the Constitution of Ireland, 1937, by the Eighth Amendment to the Constitution in 1983.

  48. The context in which this amendment was passed is important and relevant.

    Context - statutory

  49. Before Article 40.3.3° was introduced into the Constitution the law on abortion was governed by s.58 and s.59 of the Offences against the Person Act, 1861, by which the procuring of a miscarriage was a crime. These provisions were confirmed by s.10 of the Health (Family Planning) Act, 1979.

  50. The meaning of s.58 of the Offences Against the Person Act, 1861 was considered in England and Wales in R. v Bourne [1939] I KB 687. MacNaghten J. held that an abortion to preserve the life of a pregnant woman was not unlawful. It was held that where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck he could be said to be operating for the purpose of preserving the life of the mother.

  51. R. v Bourne was followed in many common law jurisdictions. However, it was never applied to or relied upon in this State. It was no part or our law.

  52. The term "miscarriage" was not defined in the Act of 1861. It was referred to in R. (Smeaton) v Secretary of State for Health [2002] 2 F.L.R. 146. Munby J., at p.210 stated:-

    Professor J K Mason takes the same view as both Professor Kennedy and Professor Grubb, and for much the same reasons: see his Medico-Legal Aspects of Reproduction and Parenthood (1990) pp 54-56 and Mason, McCall Smith and Laurie Law and Medical Ethics (5th edn, 1999) pp 111-112, 129-130. He adds (Medico-Legal Aspects at p 54) an interesting argument as to why preventing implantation is not procuring a miscarriage: 'Medically speaking .... there is wealth of difference, the most particular being that the contents of the body's passages which are open to the exterior are, themselves, "external" to the body. A simple example is to be seen in the ingestion of a toxic substance; an analysis of the stomach or bowel contents may indicate the fact of ingestion but cannot demonstrate poisoning-the substance has not been absorbed and is, accordingly, still "external" in nature. Something which is external is carried only in the loosest sense-it can be dropped either intentionally, accidentally or naturally. There can be little or no doubt that bodily "carriage" implies some kind of integration with the body or, as Kennedy has said: "there can be no miscarriage without carriage".

    I agree with this analysis and apply it in my consideration of the issue before the Court.

  53. Therefore, I am satisfied that, in the context of the statutory law prior to the introduction of Article 40.3.3° of the Constitution, the State protection of an embryo arose after implantation. The Amendment introduced in the Constitution was to copper fasten the protection provided in the statutory regime, to render unconstitutional the procuring of a miscarriage. It meant that any expansive interpretation of the Act of 1861 was precluded.

    Context - right to privacy

  54. Prior to the Eighth Amendment the context also included some controversial cases in other jurisdictions on, and the development of, the right to privacy. The right of privacy was interpreted by the Supreme Court of the United States of America to prohibit state interference with a couple's use of contraceptives: Griswold v Connecticut [1965] 381 U.S. 479. It was also the basis for the decision of that Court on the right of a woman to decide to have an abortion: Roe v Wade [1973] 410 U.S. 113.

  55. The right to privacy was also considered by this Court. In McGee v Attorney General [1974] 1 I.R. 284 it was held that the provisions of s.17(3) of the Criminal Law Amendment Act, 1935, which prohibited the sale or import of contraceptives, were no longer in force. The provisions were held to be an unjustified invasion of the woman's personal right to privacy in her marital affairs, and inconsistent with Article 40.3.1° of the Constitution. That article provides that 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. In his judgment Walsh J. pointed out that the sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. He stated, at p.313:-

    In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.

    In the debate before the Court in McGee the case Griswold v Connecticut [1965] 381 U.S. 479 was opened and relied upon by the plaintiff. Walsh J. referred to that case (and two other cases of the U.S.A. which had been opened) and stated that his reason for not referring to them was not because he did not find them helpful or relevant, which he stated they were, but because he found it unnecessary to rely upon any of the dicta in those cases to support the views which he expressed.

    Context - Mischief addressed

  56. I am satisfied that the mischief to which Article 40.3.3° was addressed was that of the termination of pregnancy, the procuring of a miscarriage, an abortion.

  57. McCarthy J. stated in Attorney General v X [1992] 1 I.R. 1 at p.81:-

    [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 [which prohibited abortion] or otherwise, in general, legalising abortion.

    The Amendment would have a significant consequence for the legislature, it would preclude an unqualified repeal of s.58 of the Act of 1861. It would have a significant consequence in the Courts also.

    Words

  58. It is necessary to consider the words of Article 40.3.3º carefully. Article 40.3.3° acknowledges the right to life of the unborn. However, due regard is given to the equal right to life of the mother. This establishes a specific constitutional and legal relationship between the unborn and the mother.

  59. The unborn is considered in Article 40.3.3° in relation to the mother. The special relationship is acknowledged. Of course there is a relationship between the frozen embryos in the clinic and the mother and the father - but not the link and relationship envisaged in Article 40.3.3°. Article 40.3.3° was drafted in light of the special relationship that exists uniquely between a mother and the child she carries. It is when this relationship exists that Article 40.3.3° applies.

  60. Further, the relationship is viewed through the prism of the right to life. It applies to a relationship where one life may be balanced against another. This relationship only exists, this balance only applies, where there is a physical connection between the mother and the unborn. This occurs only subsequent to implantation of the embryo. Thus the balancing of the right to life described in Article 40.3.3° may only take place after implantation. Therefore an unborn under Article 40.3.3° is established after an embryo is implanted.

  61. The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother.

  62. This analysis may be put in a slightly different form. The right to life of the unborn is not stated as an absolute right in Article 40.3.3°. Rather, it is subject to the due regard to the right to life of the mother. The right to life of the mother is not stated as an absolute right either. Article 40.3.3° refers to a situation where these two lives are connected and a balance may have to be sought between the two lives. Thus the physical situation must exist to require such a balancing act. No such connection exists between the plaintiff and the three surplus embryos now frozen and stored at the Clinic. There is no such connection between the lives of the mother and the embryos at the moment. The relationship which might require the consideration of the right to life of the unborn and the equal right of the mother does not arise in the circumstances.

  63. This connection, relationship, between the embryos and the mother does not arise until after implantation has occurred. After the implantation of an embryo the relationship between the embryo and the mother changes. The mother has carriage of the embryos, becomes pregnant, and the embryo enters a state of "unborn". At that time an attachment begins between the two lives. It is that attachment which gives rise to the relationship addressed in Article 40.3.3°.

  64. The words of Article 40.3.3° refers to a situation where the rights of the mother and the unborn are engaged. This occurs after implantation. Thus Article 40.3.3° does not apply to pre-implantation embryos.

  65. There were submissions stressing the word "beo" in the Irish version of the Article. However, both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of "life" is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected. This situation, the capacity to be born, arises after implantation.

    Harmonious Interpretation

  66. The interpretation of the "unborn" as arising after implantation is also a harmonious interpretation of the Constitution. Article 41.1.2 states:-

    The State .... guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

    This establishes a strong family unit under the Constitution. In McGee v Attorney General [1974] 1 I.R. 284 it was pointed out that this prevents the State from interfering in a married couple's decision as to the make up of their family unit. Walsh J. stated at p.311:-

    It is a matter exclusively for the husband and wife to decide how many children they wish to have, it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children.

  67. If the frozen embryos were the "unborn" protected by Article 40.3.3° the State would have to intervene to facilitate their implantation. This would be a duty of the State irrespective of the parents' wishes. Clearly this would be inconsistent with the rights of the family under the Constitution. It would also give to the State a duty to protect all embryos in the State in all the clinics, hospitals, etc., no matter what were the wishes of the parents.

  68. In constructing the Constitution it is appropriate to seek a harmonious construction of Article 40.3.3° in the context of the Constitution. I agree with the approach of Henchy J., who spoke of achieving "the smooth and harmonious operation of the Constitution": Tormey v Ireland [1985] 1 I.R. 289 at p.296. The interpretation and construction should not lead to conflict with other articles, as O'Higgins C.J. enunciated in: State (D.P.P.) v Walsh [1981] I.R. 412 at p.425. I believe that the construction which I have found of the term "unborn" is harmonious with other articles in the Constitution.

    Conclusion on constitutional issue

  69. For the reasons given I am satisfied that the term "unborn" does not refer to an unimplanted embryo. Consequently, it does not apply to the three surplus frozen embryos stored in the Clinic.

    Overall Conclusion

  70. On the first issue, which was referred to as having a contractual aspect, I am satisfied that the documents signed by the plaintiff and her husband in January, 2002 were forms provided by the Clinic to the plaintiff and her husband to obtain their consents to the medical procedures. They did not establish any contractual relationship between the plaintiff and her husband. There was no express agreement to the implantation of these surplus embryos at a later date. Nor was there any implied consent by the husband to the implantation of the surplus frozen embryos. As there was no initial agreement taken as to the implantation of the surplus embryos by the plaintiff and her husband there is no question of enforcing an earlier choice.

  71. There was no issue of a withdrawal of a consent. On the facts no issue of estoppel arises. For the reasons set out in this judgment I would dismiss this ground of appeal.

  72. On the second issue, the constitutional issue, the plaintiff submitted that the three surplus embryos from the I.V.F. treatment constitute the unborn for the purpose of Article 40.3.3º of the Constitution and that the State is obliged to facilitate the implantation of the embryos in the plaintiff’s uterus as a consequence of the constitutional duty to protect the unborn. For the reasons set out in this judgment I would dismiss this appeal. In the context of the statutory law prior to the introduction of Article 40.3.3º of the Constitution, the State protection of an embryo arose after implantation. The context also includes cases at home and abroad which referred to the right to privacy and marital privacy. In that context Article 40.3.3º was addressed to the issue of miscarriage and abortion. I have considered the words of Article 40.3.3º carefully. Article 40.3.3º was drafted in light of the special relationship which exists uniquely between a mother and a child which she carries. It is when this relationship exists that Article 40.3.3º applies. The balancing of the right to life described in Article 40.3.3º may occur only after implantation. Thus an “unborn” described in Article 40.3.3º is established after an embryo is implanted. After the implantation of an embryo the relationship between the mother and the embryo changes. After the implantation the mother has carriage of the embryo and the embryo enters a state of “unborn”, there is an attachment between the mother and an unborn. It is that attachment which gives rise to the relationship addressed in Article 40.3.3º where the state acknowledges the right to life of the unborn and the due regard to the equal right to life of the mother. The interpretation of the “unborn” arising after implantation is a harmonious interpretation of the Constitution consistent with other rights under the Constitution.

  73. For the reasons given I would dismiss the appeal on all grounds.


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