Woman loses appeal over frozen embryos

The Supreme Court has dismissed an appeal by a woman seeking to have three frozen embryos released to her for implantation.

It has also ruled that the term 'unborn' only applies after implantation in the womb and does not apply to frozen embryos, and therefore they are not afforded the legal protection guaranteed by article 40.3.3 of the Constitution.

All five presiding judges were in agreement in dismissing the appeal.

The appeal was taken by a 43-year-old mother of two, Mary Roche, after she lost her High Court bid to have the embryos implanted in her womb so that she could become pregnant against the wishes of her estranged husband, Thomas Roche.

The Supreme Court expressed concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland.

Mr Justice Fennelly said it was 'disturbing' that four years after the publication of the Report of the Commission on Assisted Reproduction, no legislative proposal had ever been formulated.

The embryos were created after the Roches underwent IVF treatment in 2002.

Mrs Roche, who already had one child, became pregnant and had a child as a result of the IVF.

Shortly afterwards the couple separated.

The case concerns the fate of three surplus embryos not used in the original impregnation, which have been in frozen storage in a Dublin clinic since February 2002 and which Mrs Roche wishes to have implanted.

Her now estranged husband has said he does not want any more children and is opposed to the embryos being returned to her.

In November 2006 the High Court rejected Mrs Roche's argument that the embryos are protected by Article 40.3.3 of the Constitution, which protects the 'right to life' of the unborn.

The High Court ruled that the embryos are not 'unborn' within the meaning of the Constitution.

In the Supreme Court earlier this year, her lawyers argued the man had signed documents consenting to the remaining embryos being implanted.

They also argued under the Constitution, the State must protect and vindicate the right to life of the unborn.

Mr Roche's lawyers said there was no agreement between him and Mrs Roche as to what was to happen to the remaining embryos.

Even if there was consent, they argued, he was entitled to withdraw it.

The State argued that an embryo is not entitled to constitutional protection unless it is implanted in a woman's womb.

In her judgment Mrs Justice Susan Denham said this case was not about the wonder and mystery of human life.

She said this was a court of law that had been requested to make a legal decision on the construction of an article in the Constitution.

She said it was not an arena for attempting to define life.

She ruled that Article 40.3.3 envisaged a balancing act between the life of the mother and her unborn child and this could only exist where there was a physical connection between them.

She said the 'unborn' under this article of the Constitution refers to an embryo after implantation.

If frozen embryos were protected by the Constitution, the State would have to intervene to facilitate their implantation regardless of the wishes of the parents.

Mr Justice Adrian Hardiman said there was a marked reluctance on the part of the legislature to legislate on the issues around assisted human reproduction.

He said if the Oireachtas did not address such issues, Ireland may become by default an unregulated environment for practices that may become controversial.

A spokesman for the Department of Health said a memo went to Government in the past couple of weeks on issues relating to the area of assisted human reproduction.

He said legislation was expected next year.