A Supreme Court judge has held that frozen embryos which have not been implanted were not covered by the constitutional protection then afforded to the right to life of the unborn.
Mr Justice Fennelly delivered his judgment on 15 December 2009 in Mary Roche's appeal involving Thomas Roche, Anthony Walsh, David Walsh and Sims Clinic Ltd.
Fennelly J agreed that the appeal should be dismissed. He also agreed with Mr Justice Geoghegan that Thomas Roche was not bound by contract, agreement or equitable principles to permit the frozen embryos to be implanted.
On the constitutional issue, Fennelly J agreed with the reasoning of Hardiman and Geoghegan JJ that Article 40.3.3 did not extend to frozen embryos which had not been implanted. His judgment stressed that the wording adopted in the Eighth Amendment was distinct constitutional language and should not simply be treated as reinforcing older criminal legislation.
The judgment also addressed what the court was not deciding. Fennelly J said an unimplanted frozen embryo was entitled to respect, but he did not hold that it had constitutional protection under another provision of the Constitution.
Instead, he raised the possibility that a future court might have to consider that question if the State continued not to legislate.
Fennelly J criticised the absence of statutory regulation of in vitro fertilisation. He noted that about four years had passed since publication of the Report of the Commission on Assisted Human Reproduction without a legislative proposal being formulated.
The judgment records that counsel for the Attorney General submitted that there was no law or public policy giving frozen embryos legal status. Fennelly J described IVF as difficult and sensitive subject matter but said the creation of an embryo outside the womb involved the essential unique components of a potential new human individual and merited respect.