The High Court ruled that a separated couple had made no agreement, express or implied, about what should happen to three frozen embryos after their first IVF treatment resulted in a pregnancy. The court held that the husband had not agreed to their later implantation in his wife’s uterus.
The decision, delivered by Mr Justice Brian McGovern on 18 July 2006, resolved the first issue selected for decision in proceedings brought by M. R. against her husband, the fertility clinic doctors and the Attorney General as notice party. The judge said the issue was whether an agreement existed and, if so, whether it remained binding after the couple separated. Other claims in the case were not decided in this judgment.
The couple underwent IVF treatment at Sims Fertility Clinic Dublin. They signed a joint form consenting to the freezing of embryos and accepting ongoing responsibility for them. The husband also signed a form consenting to the “course of treatment outlined above” and acknowledging that he would become the legal father of any resulting child. The wife separately consented to transfer of three embryos into her uterus.
Six viable embryos were created. Three were implanted, and the wife later gave birth to a daughter. The remaining three were frozen. She wanted them implanted in the hope of having another child or children. Her husband opposed that, saying he had not agreed to it and should not be made a father in circumstances he did not want.
The judge found no express consent to transfer the frozen embryos. He said the transfer form related to the three embryos used in the first procedure, while the husband had not signed that form. The joint freezing consent and the husband’s semen collection form did not establish his express agreement to later implantation.
The court also rejected an implied agreement. The judge found that the couple had not discussed what should happen to the frozen embryos if the first implantation succeeded or if they separated. The clinic had not provided a form addressing those contingencies. In those circumstances, the judge was not satisfied that either the parties’ presumed intention or the nature of their agreement required the frozen embryos to be implanted.
The ruling was limited to that contractual issue: there was no agreement governing the embryos in the circumstances that had arisen, and the husband was not bound to consent to their implantation. The judgment did not determine the other pleaded claims, including claims concerning the embryos’ right to life and family life, their return, or their destruction.