Court rules against woman in case over frozen embryos

The Supreme Court has unanimously dismissed an appeal by a separated mother of two against the High Court's refusal to order a Dublin clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband.

The five judge court found the embryos are not the "unborn" within the meaning of Article 40.3.3 of the Constitution (the anti-abortion amendment of 1983) and therefore not entitled to Constitutional proetction. The "unborn" referred to a child within the womb and not pre-implanation embryos, the judges ruled.

They also found there was no enforceable contract between the woman, Mary Roche (43), and her estranged husband, Thomas Roche, entitling her to use the embryos.

The court also once again highlighted the failure of the State to regulate fertility treatment and stressed the matter was "serious and urgent". Noting the courts have stressed the need for laws for some 18 years, Mr Justice Adrian Hardiman warned that if the legislature does not address these issues, Ireland may become by default an unregulated environment for practices which may prove controversial or, at least, to give rise to a need for regulation.

The fact the embryos in this case did not attract constitutioinal protection did not mean they should not be treated with respect as entitites having the potential to become a life in being, he said.

He noted several other European countries have introduced laws based precisely on respect for such embryos. He also noted, if respect for a fertilised embryo was carried to the point of equating it to a life in being, this would lead to the outlawing of the morning after pill method of contraception.

In his concurring judgment, Mr Justice Nial Fennelly said it appeared the State has no present intention to propose any legislation. Arguably, there may be a constitutional obligation on the State to give concrete form to the respect to which a frozen embryo is entitled and, if there is not action by the legisslature, it may be open to the courts in a future case to consider if an embryp enjoys constitutional protection under other provisions of the Constitution, he said.

Ms Justice Susan Denham said there may be circumstances, such as where a woman has no children and her only reasonable prospect of bearing a child is the implanantion of embryos, where she may be entitled to implantation irrespective of the consent of the man concerned.

The embryos were created after fertility treatment undertaken by Ms Roche and her estranged husband in early 2002 and are stored at the SIMS fertility clinic, Rathgar, Dublin. The couple had one child in 1997 conceived naturally and a second child was born in October 2002 as a result of the treatment. They separated later in 2002.

Ms Roche had claimed she was entitled to have the remaining three frozen embryos implanted because of (1) consents signed by her husband in 2002 relating to the fertility treatment and (2) the State's obligation under Article 40.3.3 to protect and vindicate the right to life of the unborn. She contended an embryo is an "unborn" within Article 40.3.3 as, she claims, human life begins from conception.

The court heard the Oireachtas Committee on Health and Children had received recommendations in 2005 from the Commission on Assisted Human Reproduction concering regulation of fertility treatment here. The State has also not subscribed to European conventions in that regard, it was stated