The Supreme Court dismissed Mary Roche’s appeal over three frozen embryos created during IVF treatment, upholding the High Court’s dismissal of her civil claim and rejecting her constitutional arguments. The Court ruled that embryos preserved outside the womb were not “the unborn” for the purposes of Article 40.3.3 of the Constitution.
The dispute concerned embryos created from eggs retrieved from Ms Roche and sperm donated by her husband, Thomas Roche. Six viable fertilised embryos were produced. Three were implanted, resulting in the birth of a daughter in October 2002; the other three were cryogenically preserved at the Sims Clinic.
After the couple separated, Ms Roche sought to have the remaining embryos implanted, with any resulting child or children to be maintained at her husband’s expense. He opposed implantation, saying he had not agreed to it and that compelling him to become a father in the circumstances would breach his rights and autonomy.
The appeal followed two High Court judgments in 2006. In the civil claim, Ms Roche argued that an agreement entitled her to implantation, or that her husband was estopped from denying such an agreement. The Supreme Court agreed with the trial judge’s findings, including that the couple had never discussed what would happen to the embryos if they separated or divorced. It upheld the dismissal of that claim, finding no express agreement on the issue and agreeing with the trial judge’s conclusions about implied or presumed intention.
Ms Roche also argued that the embryos were “the unborn” protected by Article 40.3.3, and that implantation was necessary to preserve their right to life. The Court held that the constitutional provision concerned a pregnancy in which the unborn life was physically integrated with the mother’s body. Because the embryos were frozen and unimplanted, they could not affect the mother’s right to life and did not fall within that provision. The judgment also rejected reliance on Article 40.3.1 as a basis for the claim.
The Court said its ruling did not settle what degree of respect should be afforded to fertilised embryos or when human life begins. It described those questions as matters for the legislature and urged it to consider legislation as scientific developments continued.