Status of embryos ‘precarious’ in absence of law
Mr Justice Brian McGovern said legislation neither defined what was meant by the term ‘unborn’ as contained in the Constitution, nor set out the protections that should be afforded to test-tube embryos existing outside the womb.
In the absence of legislation, Justice McGovern said he could decide that the three frozen embryos in question were not ‘unborn’ the intended meaning of the Constitution and so were not entitled to the same protection as a foetus in the womb.
He could not, however, say what should happen to the embryos now, concluding that unless there was agreement between the mother and father of the embryos — which was unlikely given their opposing sides in the dispute — the embryos would most likely “remain in a state of cryopreservation for an indefinite period”.
He continued: “Eventually, there will come a time when these embryos cannot be implanted in the plaintiff’s [the mother] uterus with any hope of success, as she is getting older.”
Justice McGovern gave his judgment in the case of Dublin mother-of-two Mary Roche, who asked the High Court to force her estranged husband, Thomas Roche, to allow her have the three embryos implanted in her womb in the hope of her becoming pregnant with the couple’s third child.
Alternatively, she asked the court to rule that embryos enjoyed Constitutional protection and so deserved to have a chance at developing into a baby regardless of the father’s wishes.
Last July, Justice McGovern ruled he could not force Mr Roche to agree to implantation against his will. He said the consent form Mr Roche signed at the time he and Ms Roche went for IVF treatment in 2002 did not envisage the break-up of their marriage and did not specify what would happen to remaining embryos in such a case.
The more complex part of the case, deciding on the rights of the embryos, concluded yesterday in a 26- page ruling in which Justice McGovern said the embryos did not have personal rights.
In reaching his decision, Justice McGovern stressed that he was not coming to any conclusion on the question of when life began.
“In my opinion, it is not possible for this court to state when human life begins,” he said.
“For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a ‘human being’. But it is not the function of the courts to choose between competing religious and moral beliefs.”
He was, however, making a decision on whether an ‘in vitro’, meaning outside the womb, embryo came under the description of the “unborn”, as meant by Article 40.3.3 of the Constitution.
He noted that Article 40.3.3 was inserted as a result of the constitutional referendum of 1983, against the background of the national debate on abortion and he concluded that the protections it affords to the ‘unborn’ were meant to apply to the foetus in the womb, as this was the form of life at the core of the debate.
He acknowledged that at various times, other High Court judges had made comments such as: “The right to life of a foetus, the unborn, is afforded statutory protection from the date of its conception” and “one cannot make distinctions between individual phases of the unborn life”.
However, while these earlier rulings seemed to suggest an in vitro embryo had equal status with a foetus in the womb, Justice McGovern held that the judges in question drew their conclusions in the context of the abortion question and were therefore, thinking only of a foetus in the womb.
“What clearly emerges from the authorities I have referred to is that the courts have declared that the Eighth Amendment to the Constitution, giving rise to the wording in Article 40.3.3, was for the purpose of making secure the prohibition on abortion,” he said.
“To infer that it was in the mind of the people that ‘unborn’ included embryos outside the womb or embryos in vitro would be to completely ignore the circumstances in which the amendment giving rise to Article 40.3.3 arose.”
Justice McGovern noted the Medical Council’s code on ethics forbade the deliberate destruction of an embryo though this held no legal weight. He also highlighted the Constitution Review Group’s warning in 1996: “Definition is needed as to when the ‘unborn’ acquires the protection of the law.”
He continued: “It is not for the courts to decide whether the word ‘unborn’ should include embryos in vitro. This is a matter for the Oireachtas, or for the people, in the event that a constitutional amendment is put before them.”
He concluded: “It is the duty of the courts to implement and apply the law, not morality. It seems to me that in the absence of any rules or regulations in this jurisdiction, embryos outside the womb have a very precarious existence.”
THOMAS ROCHE told the High Court he did not want to have any more children with his wife.
“I have a right to say no, it’s a human right,” the 44-year-old father of two, now separated from his wife, said.
When he and his wife embarked on IVF treatment from late 2001 into 2002, the intention was to have another child as a brother or sister for their son, who was born naturally in 1997, as neither wished their son to be an only child, he said.
There were difficulties after that first birth, including post-natal depression, but they had decided to have “one more go” and opted for IVF. They accepted there was a risk of multiple births when they agreed to have three embryos implanted in his wife’s uterus in early 2002. He believed the three remaining frozen embryos, were only to be used if his wife did not become pregnant after the first implantation.
When his wife became pregnant in February 2002 after implantation, they never discussed further children, he said. When they had their second child in September 2002, “that was it”, because he had reached the age of 40.
Mr Roche told the court his marriage effectively broke up in 2002 and the couple, since then, were involved in family law proceedings which had not yet concluded.
When he signed a document at the Sims Clinic on January 29, 2002, headed ‘Husband’s Consent’, he understood this meant he would be the father of a child conceived by IVF treatment.
That document, the court heard, involved his consenting to his wife undergoing “the course of treatment outlined above” and his accepting he would be the legal father of any “resulting child”. He agreed he also signed a consent for the freezing of the embryos.
In submissions for the husband, John Rogers SC argued the husband’s consent document signed by his client stopped short of implantation of the embryos in the wife’s uterus and related only to the fertilisation of the woman’s eggs with her husband’s sperm.
THE three embryos should be returned to their “rightful” place with their mother, Mary Roche told the High Court.
The 41-year-old mother-of-two said: “We’re still legally married and they are our children and the rightful place for these three frozen embryos is back with their mother to give them the right to life.”
She said the embryos were the brothers and sisters of her son and daughter.
“To understand how I feel, you have to go through IVF, it’s how our daughter came into this world . . . when you see the results of IVF, it’s a miracle.”
She told the court her 44-year-old husband had failed to return home after a work-related social event in August 2002, when she was seven months’ pregnant, and that thereafter he began to withdraw from her. She said he had told her he was having an affair when their second child, a daughter, born as a result of IVF, was four weeks old. This was in late November 2002.
According to her testimony, he moved out for 11 days but returned and stayed until December 26, 2002.
The court heard that attempts at reconciliation later failed and, ultimately, judicial separation proceedings were taken in August 2003.
Before her husband left on December 26, 2002, Ms Roche said she asked him what would they do with the frozen embryos. He said: “We’ll destroy them,” the High Court heard.
She said when she asked him again in 2005 what they would do with the embryos, he said to donate them and give the money to a children’s charity. “I said, you want to sell our children?” she said.
The court heard the embryos are in storage at the Sims Clinic in Rathgar in Dublin and the clinic has said it cannot release them without the consent of both the man and woman, but it will abide by any order made by the court.
Ms Roche said her husband failed to pay storage fees for the embryos, as agreed during judicial separation proceedings, but she paid them.
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