The Attorney General has been ordered to pay the High Court legal costs of both parties in a case concerning three frozen embryos created during fertility treatment received by a married couple.
Mary Roche and her husband, Thomas Roche, underwent fertility treatment in 2001. Six viable embryos were created. Three were implanted and Mary Roche subsequently gave birth to a daughter in 2002. The remaining three embryos were frozen and stored at a clinic.
After marital difficulties and a judicial separation agreement, Mary Roche sought to have the remaining embryos implanted. Thomas Roche refused to consent. Litigation followed over their respective rights and, more broadly, whether the constitutional protection then afforded to the life of the unborn under Article 40.3.3 extended to embryos stored outside the womb.
The Supreme Court determined the substantive appeal in Thomas Roche’s favour in December 2009. Its later ruling dealt only with costs.
Ordinarily, the successful party may recover costs from the unsuccessful party. The Supreme Court held, however, that this case presented exceptional circumstances justifying a different approach.
The judges described the constitutional questions as profound, complex and novel. Advances in reproductive medicine had created issues concerning embryos existing outside the womb which went well beyond the private interests of the spouses. The Attorney General had participated fully because of those wider constitutional and public-policy implications.
The court also took account of the matrimonial relationship between Mary and Thomas Roche. It decided that Mary Roche should not have to pay her husband’s appeal costs despite losing the substantive case.
The High Court had previously ordered the Attorney General to pay both spouses’ costs. The Supreme Court upheld that part of the order, noting that substantial expert evidence had been required at first instance.
However, it declined to make the Attorney General responsible for the costs of the Supreme Court appeal. There was therefore no order as to appeal costs.