The Supreme Court dismissed Mary Roche’s appeal seeking the release of three frozen embryos for implantation, concluding that her husband had not agreed to their later use and that the embryos were not “unborn” for the purposes of Article 40.3.3° of the Constitution.
The embryos were created during IVF treatment at Sims Clinic in 2002. Three were implanted, resulting in the birth of a daughter that October; the remaining three were frozen and stored. Roche and her husband, Thomas Roche, later separated. She asked the clinic to release the embryos, but it declined without her husband’s consent, which he refused.
Roche argued that her husband’s signed consent to IVF and embryo freezing amounted to consent to implantation, or that he was prevented by his conduct from withholding consent. The Supreme Court found that the forms were medical consent documents between the couple and the clinic, not a contract between the spouses. They did not set out what should happen to surplus embryos, and the court found neither express nor implied agreement to implant them later. It also rejected the estoppel argument. The court said that even if such an agreement had existed, it would not have been irrevocable in the circumstances, including the husband’s right not to procreate.
On the constitutional question, Roche submitted that the embryos were protected as the “unborn” and that the State should facilitate their implantation. The court held that Article 40.3.3° concerned the relationship between a pregnant woman and the unborn, which arose after implantation. It therefore did not apply to embryos stored before implantation.
The court dismissed the appeal on both the private-law and constitutional grounds. The judgment records that the clinic and the other respondents had undertaken to make reasonable efforts to preserve the embryos pending the final determination, and had indicated they would abide by the court order. The judgment also noted that Ireland had no legislation regulating assisted human reproduction at the time.