The Supreme Court has dismissed Mary Roche’s appeal seeking to have three frozen embryos implanted, after finding that she had not established a right to proceed without her estranged husband’s consent.
The case raised whether Article 40.3.3 of the Constitution, which protects the right to life of the unborn, applied to embryos frozen and stored at a clinic. In a judgment delivered on 15 December 2009, Chief Justice Murray said the appeal had not established that the embryos constituted “life of the unborn” within the meaning of the article.
The judgment recounted that Ms Roche and her husband, Thomas Roche, underwent IVF treatment in 2002. Six viable embryos were created; three were implanted, resulting in the birth of their daughter, and three were frozen. The couple had signed a form consenting to embryo freezing and taking ongoing responsibility for the embryos. Their marriage later broke down, and Mr Roche opposed implantation of the remaining embryos because he did not wish to become the father of another child.
Chief Justice Murray said there was no broad scientific or multidisciplinary consensus on when human life begins, including whether it begins at fertilisation or implantation. He held that courts lacked objective criteria to decide the question and that the initial policy choice about when constitutional protection begins belonged to the Oireachtas, subject to the Constitution. He said the alternative would be a constitutional amendment.
The court also rejected arguments based on the consent documents. Chief Justice Murray agreed with other members of the court that Ms Roche had not established a contract requiring her husband to consent to implantation, or an implied consent to it. He also agreed that she could not rely on estoppel in the circumstances of this case.
The judgment noted that there may be circumstances in which a woman could be entitled to implantation without the man’s consent, including a case where she had no children and implantation was her only reasonable prospect of bearing a child. That observation was not a finding that Ms Roche was entitled to proceed.
The appeal was dismissed because none of the grounds advanced succeeded.