S82 Roche -v- Roche & ors [2009] IESC 82 (15 December 2009)

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Cite as: [2009] IESC 82

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Judgment Title: Roche -v- Roche & ors

Neutral Citation: [2009] IESC 82

Supreme Court Record Number: 469/06 & 59/07

High Court Record Number: 2004 9792 p

Date of Delivery: 15/12/2009

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Murray C.J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Murray C.J.
Appeal dismissed - affirm High Court Order
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.

Outcome: Dismiss



Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.









JUDGMENT of Murray C.J. delivered on the 15th day of December 2009

The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. of the Constitution extends to three fertilised embryos which have been frozen and stored in a clinic.

The embryos came into being in the following circumstances. The appellant, who is the plaintiff in the proceedings, and her husband, the first named respondent, were married on the 5th March 1992. In 1994 they sought fertility advice from their general practitioner and were referred to the National Maternity Hospital, Holles Street, Dublin. Investigations in that hospital did not indicate any particular fertility problem. After care and treatment in the hospital the appellant became pregnant in January 1997 and a son was born in October 1997. The course of events which then led to the creation of the three frozen embryos the subject of these proceedings were summarised in the judgment of the learned High Court Judge on this issue as follows:

      "Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant’s clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document entitled “Consent to Treatment Involving Egg Retrieval”. In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant. On the same date the plaintiff and the first named defendant signed a document entitled “Consent to Embryo Freezing”. In that document it was stated, inter alia, “we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos.” The first named defendant signed a document entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a “Semen Collection Form” confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled “Consent to Embryo Transfer”. In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.

      As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff’s uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.

      Towards the end of the plaintiff’s pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos. "

It is in these circumstances that the issues have arisen as to whether the appellant, as she claims, is entitled to have the frozen embryos implanted in her womb against the wishes of her estranged husband who does not wish to become the father of another child.

As indicated above the appellant has asserted that since the embryos enjoy the protection of Article 40.3.3., that provision requires that their right to life be vindicated by permitting her to have them implanted in her womb.

Article 40.3.3.
This article states:

      “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The Irish language version states:
      “3°Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.”
The language of that provision mirrors to a significant extent the general protection afforded by Article 40.3.1. to the personal rights of the citizen.

That provides (in the English language version, nothing arising from a comparison of the two language versions):

      “The State guarantees in its laws to respect, and , as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Subsection 3 must be interpreted in the context of Article 40 as a whole and in particular of 40.3.1.

Article 40, under the heading ‘Fundamental Rights’ and the subheading ‘Personal Rights’, commences in its first subsection by stating that:

      “All citizens shall, as human persons, be held equal before the law.”
Thus Article 40, as adopted in 1937, addresses constitutional guarantees for the personal rights of human persons.

That is not to say that Article 40.3, before it was amended following a referendum, in 1983 did not necessarily afford constitutional protection to life before birth, and there were views expressed in public debate, particularly that related to the referendum, that it did, reference often being made to the obiter dictum of Walsh J. in McGee v. Attorney General [1974] 1 I.R. 284 at 312 where he stated:

      “On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”
Indeed that passage was at the time referred to by some as a reason for advocating that the then proposed constitutional amendment was unnecessary.

Whatever the merits of that view the Eighth Amendment to the Constitution inserted subsection 3 of Article 40.3. and effectively extended in express terms to the “life of the unborn” or “mbeo gan breith chun a mbeatha” the constitutional protection for the personal rights of citizens referred to in Article 40.3.1. It does contain a specific reference to the equal right to life of the mother and I will address that proviso in due course.

In my view the subsection 3 of Article 40.3. is clear in its intent. It is intended to protect human life before birth. The key words in the English version are “life of the unborn” and in particular, in my view the much more apt expression, “mbeo gan breith chun a mbeatha (beo in its genitive case). I think “ceart na mbeo gan breith chun a mbeatha” can be fairly interpreted as meaning the right of life not yet born to live, or to its life.

The provision does not refer to the right to life of the unborn ‘child’ or ‘foetus’. No doubt because that could have compromised the meaning of life by raising questions as to when human life, after it had commenced, whether on conception or on implantation, could be characterised or defined as that of the child or the foetus.

Thus, Article 40.3.3. focuses on human life before birth without exception. It did not purport to confer a right but to protect a right acknowledged to exist. It commences with the words “The State acknowledges the right to life …” and sought, in a positive rather than prohibitive form, to protect that life while at the same time it made clear that the provision should not be interpreted as in any way undermining the right to life of the mother. As I said, I will address that particular proviso in due course, but for the moment, suffice it to say, in my view the provision seeks to acknowledge that human life before birth and after birth, with the specific reference to the life of the mother, are worthy of equal value and respect.

So far as the wording in the English version is concerned it refers to “right to life of the unborn” and if the English language permitted it, it might have fitted more readily with the Irish language version if it referred to “The right to life of the unborn life” but that would have been, in English, both an inelegant and tautologous form of wording for insertion in the Constitution.

In the course of the appeal it was argued that this provision of the Constitution should be interpreted in the light of the mischief it was intended to address including the statutory history of the law on abortion.

It is undoubtedly the case that the prohibition on abortion or any weakening of the existing statutory provisions on the prohibition of abortion was a central part of the debate leading up to the amendment. At that time the law of abortion was governed only by sections 58 and 59 of the Offences Against the Person Act 1861 under which the procuring of a miscarriage was a crime. In that context, it is notorious that in public debate the strength or efficacy of that prohibition, as argued by some involved in the debate, had been weakened by a decision in a case before the English courts in 1939 namely R v. Bourne [1939] 1 KB 687. The dictum in that case was never followed in this country but nonetheless was apparently used to raise concerns as to how the statutory law might be interpreted in this country.

If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily and easily by the adoption of legislation. But the public debate transcended that and the object obviously was, as the result demonstrates, to place in the Constitution a protection for human life before birth. Of course it is also notorious that another important part of the public debate was provoked by the decision of the Supreme Court in the United States in the case of Roe v. Wade 410 US 113 (1973) which found that in certain circumstances a pregnant woman had the right to have an abortion. The fear, on one side of the debate, was that the courts in this country, and specifically this Court, might at some point in the future decide that such a right resided in our Constitution.

In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the issues were addressed at constitutional level.

Having regard to the terms of Article 40.3.3. I do not consider that the Act of 1861 or any possible interpretation of it is particularly important for the interpretation of that Article.

What is important in this context is not so much the mischief that was being addressed as the manner in which it has been addressed in the terms of the constitutional provision in issue.

Article 40.3.3. is not prescriptive or prohibitive in its terms.

A prescriptive and prohibitive form of amendment could have been opted for. There was already a parallel for that in the Constitution concerning the prohibition (since deleted) on divorce which provided: “No law shall be enacted providing for the grant of dissolution of marriage”. Instead of addressing abortion as such by a prohibitive amendment such as ‘no law shall be enacted permitting an abortion to be performed’ or the like, reference to the specific mischief, so to speak, was omitted and the provision turned to focus on the positive protection of human life before birth.

In my view the provision of the Constitution was intended to embrace human life before birth without exception and to extend to it, in express positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.1 (cited above).

Of course the issue of abortion is a very controversial subject in Ireland and in many countries not only on whether it should be permitted at all, but if permitted, the circumstances and time when that may be allowed. Article 40.3.3, as adopted by the people in a referendum, is what applies in this country.

The really important question remains, namely, as to whether the frozen embryos in this case must be considered by this Court as constituting human life within the meaning of the provision.

In the course of the appeal it was suggested that Article 40.3.3. was not intended, and it should not be interpreted, as applying to the frozen embryos in this case by reason of the fact that the Article only contemplated life in the womb. Accordingly, before going on to address the fundamental question as to whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40.3.3, I propose to address this discrete point.

In support of that argument reference was made to the proviso in the article, namely, “… with due regard to the right to life of the mother, ….”

Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.

In vitro fertilisation and the creation of embryos, fertilised ova, outside the womb was probably not contemplated at the time. It is another notorious fact that part of the public debate on these matters, as indeed it had often been in the past, included concern as to whether the right to life of the unborn might, in certain circumstances, take precedence over the right to life of the mother. The kind of question posed was whether a doctor faced with a specific constitutional protection for the life of the unborn would be entitled to give appropriate treatment for a life-threatening condition of the mother when that would result in the death of the foetus. Obviously, having regard to the terms of the provision, all human life is considered of equal value. Absent any specific reference in the Constitution to the right to life of the mother, even though her right to life as well as all other persons are covered by the general provisions of Article 40.3.1. and 2, the proviso in subsection 3 serves to make a clear statement that the right to life of the mother cannot be treated as having a lesser value than that of the foetus. It had, in my view, no other purpose.

It is still of course the case, even with in vitro fertilisation, that if that statement concerning the right to life of the mother was desirable or necessary then it is equally so now. Even with in vitro fertilisation, and the associated processes, the evolution post-implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of conception, implantation and birth.

As Hederman J., stated, in Attorney General v. X [1992] 1 I.R. at 72, when considering Article 40.3.3:

      “The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism.”
In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her rights in certain circumstances and cannot logically, in my view, be interpreted as intending to remove protection from human life because it is outside the womb or to devalue the equal right to life of the unborn because it is outside the womb. Therefore, I cannot accept the argument that simply because the embryo exists outside the womb that it is excluded from the protection of Article 40.3.

If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child. It would appear that the present state of medico-biological science is such that for the frozen embryos to advance towards birth, implantation in the womb is required. Whether that science will develop further so as to permit embryos evolve further outside the womb may be a matter for speculation.

Human Life and Article 40.3.3.
We know that human life begins in the womb. That is not in issue. I speak in the context of a normal pregnancy following what is referred to as the act of procreation, of sexual intercourse between a man and a woman. The question is: at what point does human life begin; fertilisation or implantation? Again I suppose it could be said that there was a broad consensus among all disciplines that human life begins at least at implantation of the embryo in the womb or not long thereafter.

Of course courts take judicial notice, without having to expressly say so, of obvious and accepted truths concerning the nature of the world we live in. Thus a party, in appropriate proceedings, would not have to prove that a foetus of three months constituted human life no more than a party would be required to prove the existence of the law of gravity. The issue here has an altogether different dimension. There is no generally accepted truth or scientific dogma as to precisely when human life begins.

Debate and discourse as to when human life begins has for very many decades, and indeed long before that, focused, though not always exclusively, on whether human life begins at conception or at implantation.

Inevitably, this featured as part of the public debate on the constitutional amendment but the provision is resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying its protection.

I think it is safe to assume that at the time when the proposed amendment to the Constitution was being debated and its form being decided by the Oireachtas that there was no clear view or consensus on the question of when human life begins, or perhaps more important, when it can be deemed or treated as having begun.

The status of the embryo, that is to say its moral status, and specifically the issue as to when human life begins, continues to be debated and discussed as part of a virtually world wide discourse in diverse fora including the most prestigious universities and halls of learning. The many facets of the various sides to that debate, and there are cogent arguments from every perspective, is manifest from the evidence given by the expert witnesses in the High Court. The range of views expressed or referred to in that evidence underscores the absence of any broad multidisciplinary consensus as to precisely when life begins and in particular as to whether it should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for present purposes.

However, I think it can be said that the human embryo is generally accepted as having moral qualities and a moral status. However else it may be characterised, the fertilisation of the ovum is the first step in procreation and contains within it the potential, at least, for life. It has present in it all the genetic material for the formation of life. Its creation and use cannot be divorced from our concepts of human dignity.

The Council of Europe Convention on Human Rights and Biomedicine with a view to, inter alia, preventing the misuse of biology in medicine which may lead to acts endangering human dignity prohibits, in Article 18, the creation of human embryos for research purposes. Article 3 of the Charter of Fundamental Rights of the European Union prohibits the use of embryos for the cloning of human beings as does the United Nations Declaration on Human Cloning. Such provisions and the fact that many countries regulate and protect the manner and circumstances in which in vitro embryos may be created and dealt with reflect the recognised moral status of embryos as being inextricably associated with human dignity. There is inevitably within the ambit of that moral appreciation of the embryo much debate particularly concerning the parameters of regulatory measures and what should be permitted and what should be prohibited.

The moral status of embryos and the respect or protection which society may feel they are owed is a different issue to the question posed, as to when life begins, and I do not propose to comment on it further for the purposes of this judgment.

One comes back to that fundamental issue in this case; namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal, counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, philosophical, theological and scientific. It is an issue which also engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when precisely human life begins.

Absent a broad consensus or understanding on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

The learned trial Judge aptly quoted from the report of the Constitution Review Group of the Oireachtas published in July 1996 to the following effect:

      “Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect.”
In my view that sums up the role of the Oireachtas in relation to this matter as the organ of State with at least initial responsibility for the protection and regulation of constitutional rights.

Therefore, in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas having due regard to the provisions of the Constitution. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The courts do not, in my view, have at their disposal objective criteria to decide this as a justiciable issue. Issues are not justiciable before the courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 369 U.S. 186 (1962), “ a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; …” That is the position in which the Court in this case is placed regarding the question of when life begins. The onus rests on the Oireachtas to make the initial policy determination so as to define by law the precise point at which “the life of the unborn” begins to enjoy constitutional protection. The other alternative is an amendment to the Constitution.

Conclusion on this Issue
Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos constitute “life of the unborn” within the meaning of Article 40.3.3.

Contract and Implied Consent
I now turn to make a brief reference to some other issues which were raised by the appellant in the appeal. In the appeal counsel for the appellant relied on three documents as supporting her contention that the first named respondent had expressly or impliedly consented to the implantation of the three embryos. The first document is one signed by the appellant and relates to a consent to treatment involving egg retrieval. Then, on the reverse side of that document there is a consent form to the treatment which is headed the ‘Husband’s Consent’ and is signed by the first named respondent. Subsequently the appellant and the respondent signed a third document which was a consent to embryo freezing. I agree with the conclusions of Denham J., Geoghegan J., and Hardiman J., that the appellant has not established that there was any contractual engagement between these parties obliging the husband to consent to the implantation of the frozen embryos nor was there otherwise an implied consent to do so.

In the particular circumstances thus of this case and for the reasons set out in her judgment I agree with Denham J., that the plaintiff is not entitled to succeed in her claim that the first named responded is estopped from refusing his consent to implantation. I also agree with Denham J., that there may be circumstances, such as where a woman has no children (although not necessarily just in such cases) and her only reasonable prospect of bearing a child is the implantation of embryos, could be entitled to such implantation notwithstanding the absence of the consent of the man concerned to implantation, although he had consented to the embryos being frozen.

As the appellant has not succeeded on any of the grounds of appeal the appeal should be dismissed.

      JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of December 2009

      While this appeal raises very important issues, the resolution of those issues does not involve this court in attempting to answer the question of when life begins. It is not a legal issue in this case. The expert evidence on both sides make it clear that there is as yet no definite scientific or medical answer to that question. It is, of course, a question which interests also theologians and philosophers but on the particular view of this case which I have taken, none of the approaches to this question have relevance to the issue on the appeal.

      At this early stage, I think I should also make clear that because of the view I have taken on the issues in dispute (which is more or less the same view as that taken by the learned High Court judge) I will not be expressing any opinion as to how the State should regulate unused embryos created in IVF treatment. It emerged at the hearing of the appeal that many countries have put in place regulatory regimes relating to spare embryos. Germany, Italy and the U.K. were cited as examples but there is no regulation whatsoever in Ireland as yet. The only constitutional question which this case raises is whether the spare embryo is one of the “unborn” with the constitutional right to life under Article 40.3.3 of the Constitution. For reasons upon which I will be elaborating, I take the view that “the unborn” protected by that Article are confined to the unborn within the womb. I will be basing this opinion both on the words of the constitutional provision itself and on the history of the crime of abortion in this jurisdiction which was the context in which that provision was inserted into the Constitution by referendum of the people. In addition to the judgment of the learned High Court judge (McGovern J.) to which I have already referred, I gained particular assistance in arriving at my opinion from the written submissions of the Attorney General.

      I will proceed now to explain the nature and scope of this appeal. A married couple had a child in the normal way. Some time later they wanted to have a second child. However, in the meantime, the appellant who was the wife had undergone surgery for an ovarian cyst and had lost two thirds of her right ovary. As a consequence of medical advice, it became clear that in order to have another child she would have to undergo IVF treatment. She procured this treatment at the Sims Clinic in Rathgar, Dublin. That treatment involved (inter alia) the removal of eggs from her ovaries and the mixing of the eggs with the sperm of her husband. Because egg retrieval is difficult and painful, the practice in fertility clinics has been to ensure that there would be enough eggs to be fertilised so as to avoid a second retrieval operation. What in practice happened was that the appellant’s ova were mixed with the respondent’s sperm creating six viable embryos. Three of these were immediately implanted into the appellant’s uterus and the others were frozen.

      This implantation was successful and the appellant gave birth to a daughter. Around the same time, the marriage broke up, as the respondent had entered into another relationship.

      The appellant, being aware of the existence of the three frozen embryos which were the spares, wanted them implanted in her uterus so that she could undergo a further pregnancy and produce a third child. The respondent objects because it would put him into the position that he was forcibly becoming a father, something which he does not want to happen. There is a further context to his objection. It is clear from the evidence given by the appellant that she would have regarded any child born as a consequence of the spare embryo being implanted, as a child of the respondent just as much as a child of the appellant with all the financial and other responsibilities that fatherhood involves. At all material times, the appellant and the respondent were medically advised that the IVF treatment could result in multiple births. If, therefore, the three spare embryos were duly implanted the possibility that triplets would be born could not be ruled out. I am merely recounting the perspective of the appellant as it emerged in evidence without placing any value judgment on it.

      The first issue in the case was whether there was an enforceable contract as between the parties entitling the appellant to make use of the spare embryos. The learned trial judge held that there was not. I am in agreement with that finding for much the same reasons as influenced the trial judge but I will elaborate on them more fully in due course. Because of that view which I have taken, I do not find it necessary to consider the legal issue of whether there can be such an enforceable contract and, if so, how determinative it is. The court has been referred to considerable case law emanating from the United States of America, the majority thrust of which is that the fate of spare embryos should be determined by agreement of the parties. Since I am satisfied there was no contract here, I do not find it necessary to review those authorities nor am I to be taken as necessarily agreeing with their conclusions. I would prefer to leave these difficult questions to a case where they genuinely arise. In this particular case, the argument for a contract is outlined and explained in the judgment of the learned trial judge. I should, of course, mention at this stage that McGovern J. delivered himself of two distinct judgments. The first judgment of the 18th July, 2006 dealt with the contract issue. The second judgment, that of the 15th November, 2006 treated of the constitutional issue. It is the contract issue which I now intend to address.

      It is not suggested that there was any clear written or oral agreement between the appellant and the respondent as to what was to happen spare embryos. Nevertheless in arguing for a contract, some written documents were relied on by the appellant. These documents were Consents which the clinic required to be signed as a routine part of their procedures. There were four Consent documents in all. The first was entitled “Consent to Treatment Involving Egg Retrieval”. That Consent was signed by the appellant only and by the form she gave her consent to the removal of eggs from her ovaries and the mixing of those eggs with the respondent’s sperm. The second document was a Consent form signed by both parties and entitled “Consent to Embryo Freezing”. By this form both the appellant and respondent agreed to the cryopreservation of the embryo and to take full responsibility on an on-going basis for frozen embryos. The third Consent form was entitled “Husband’s Consent” in which he consented to the treatment and expressed his understanding that he would become the legal father of any resulting child. The fourth and final document was entitled “Consent to Embryo Transfer” which involved the appellant consenting to the placing in her uterus of three embryos.

      Like the learned High Court judge, I will elaborate slightly on this. It was clear from the medical evidence that the egg retrieval which is obviously an essential element of the IVF treatment can be awkward and painful. As a consequence, in most countries including Ireland, fertility clinics try to ensure that there be a sufficient number of eggs for fertilisation so that egg retrieval would not have to be undergone a second time. In this particular case nine or ten eggs were retrieved and were mixed with the respondent’s sperm. Of the resulting embryos, six were considered viable. The remainder were not frozen and they were presumably disposed of. Three of the six viable embryos were implanted into the appellant’s uterus and the remaining three were frozen.

      The implantation of those three embryos resulted in a pregnancy and a successful birth of a daughter on the 26th October, 2002.

      It is clear from the evidence of Dr. Wingfield, the consultant obstetrician and gynaecologist at the National Maternity Hospital, Holles Street that the reason why the standard IVF practice in most countries with the notable exception of Italy and Germany is to try and ensure that there are some spare suitable embryos which can be frozen, is to avoid putting the woman through the repeat painful procedure of egg removal. Indeed I think it useful to quote what she actually said in her witness statement:

        “To achieve optimal success rates (still only 20/30% per cycle started) it is necessary to use superovulation. This results in multiple oocytes. The best pregnancy rates occur in cycles where six to ten oocytes are retrieved.

        In an ideal world, these oocytes would be fertilised only as required i.e. one or two would be incubated with sperm and if these fertilise they would be placed in the uterus. If fertilisation did not occur, another two eggs could be tried etc. Unfortunately, oocytes do not survive outside the body and must be used within hours of retrieval. It is not yet possible to be able to choose the best quality eggs or the ones which are most likely to be successfully fertilised and the safety of the technology has not been sufficiently validated to routinely freeze oocytes. It is therefore necessary to try to fertilise all of the eggs once retrieved (i.e. they must all be used immediately or they are wasted).

        On average, only 50/70% of oocytes will be successfully fertilised if exposed to sperm and a further large proportion of fertilised oocytes will be abnormal and unusable (at least 40%). In older women particularly, the chance of successful blastocyst formation, implantation and healthy pregnancy is low (10% and less if over 40 years. Most doctors and others working in IVF therefore consider it unethical to subject the woman to the risks of superovulation treatment if all oocytes are not then going to be used.

        It is only safe to transfer two embryos to the uterus (three in rare cases); otherwise there is an unacceptable risk of multiple pregnancies. It is well proven that multiple pregnancies lead to greatly increased rates of miscarriage, premature birth, neo-natal morbidity and cerebral palsy. Therefore, one or two of the best embryos are transferred and the remainder are frozen, if deemed to be of sufficiently viable.

        The purpose of all embryo freezing programmes is to give a couple the best chance to achieve a pregnancy with a maximum of safety. If the woman does not conceive following her first embryo transfer, one or two frozen embryos may be thawed and transferred to her uterus, without the need for further superovulation an oocyte retrieval. For couples who conceive with their first embryo transfer, they may achieve a second pregnancy a few years later using previously frozen embryos. Frozen embryo transfer is medically safer and less expensive than a second fresh IVF cycle.”

      Dr. Wingfield goes on to explain that the above practice of IVF which is the norm in Ireland is accepted as best practice in the vast majority of countries. She stated that the majority of couples will quickly use any frozen embryos in order to achieve one or more pregnancies. But she accepts that some couples will end up with unwanted frozen embryos. Interestingly, she makes the point that this could occur for different reasons “e.g. they have had one or more children and their family is now complete or they may separate, one partner dies etc.” Whilst there are no regulations in Ireland she points out that in other jurisdictions the options to deal with unwanted embryos may include donation to another couple, donation for research or simply allowing them to perish.

      I do not think that Dr. Wingfield’s expert evidence was in controversy at the trial and I have found her summary of the position very useful. She mentions that there are seven clinics providing IVF services in Ireland with approximately 2,500 fresh IVF and 700 frozen embryo cycles being performed every year. Although there is no statutory regulation, she refers to the Medical Council Guidelines and to the report of the Commission on Assisted Human Reproduction (2004). The Guidelines of the Medical Council and that report are both before the court. The guidelines do not ban embryo freezing and recommend donation of surplus embryos to another couple. The guidelines are not altogether satisfactory and are left somewhat vague. What is satisfactory is the excellent report of the Commission on Assisted Human Reproduction. That report lists and deals with all aspects of the problem. There were forty recommendations. The fourth and ninth of these inter alia are relevant to this case: The fourth reads:

        “Appropriate guidelines should be put in place to govern the freezing and storage of gametes and the use of frozen gametes. The regulatory body should, in accordance with statutory guidelines, have power to address cases where gametes are abandoned, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partner dies or becomes incapacitated.”

      The ninth recommendation reads as follows:

        “Appropriate guidelines should be put in place by the regulatory body to govern the freezing of excess healthy embryos.”

      Unfortunately, unlike most other countries no statutory regulations have been put in place. Running right through most of the documentation produced is the concept of the respect to be shown to the spare embryos but nowhere is there a suggestion that either party can be compelled by the other to become a parent in the absence of agreement. Referring to the document “Consent to Embryo Transfer” the judge went on to say that it was clear from the evidence that the three embryos referred to in that particular form were the embryos which were not frozen and that the purpose of freezing the other embryos was to use them if the first implantation failed. That finding was supported by evidence from both the appellant and the respondent and indeed precise references are given in the judgment. The first implantation having been successful, the judge pointed out that that left the question as to what was to happen to the remaining frozen embryos. He refers to the evidence of both parties and I have also read their evidence. On the basis of the consent form signed and on the oral evidence which he heard, the learned trial judge held that there was no evidence that the respondent gave his express consent to the implantation of the three frozen embryos in the plaintiff’s uterus and he went on to consider whether that consent could be implied. Not only was the finding open to him to make, I do not think that any other finding would have been open having regard to the evidence.

      As I have already mentioned, at more or less the time of the birth of the IVF child, the marriage unfortunately broke up. There seems little doubt that there was no prior agreement relating to any of these contingencies whether foreseen or unforeseen. At most, there would have been an understanding that the question of using the frozen embryos in the event of a failure following the first implantation would be considered or indeed that it might be considered for the purpose of producing a second child. Even that is doubtful. I do not consider that any such understanding or agreement would ever have been intended to be a legally binding contract. Before ever one considers the other essential ingredients of a legally enforceable contract such as consideration and “offer and acceptance”, the first essential requirement is that there was an intention to create legal relations. There is nothing in the evidence of either party which supports any such intention. The forms signed were Consent forms required within the clinic system and they cannot be construed as contracts.

      I have diverted somewhat, because of course I already mentioned that the judge went on to consider whether, even if there was no express contract, there might have been an implied contract. My first observation on that proposition is that in a domestic agreement between husband and wife of this kind, it would be rare that even express terms would be held to constitute a legally binding contract. It would be extremely rare that an understanding between husband and wife would be held to have ripened into a legally enforceable contract not even containing all the express terms but containing implied terms. The learned trial judge has correctly reviewed the authorities on implied terms and I do not intend to cover that territory. I agree with everything that he says.

      I now turn to what is really the more serious issue on the appeal, the question of whether each of the frozen embryos is an “unborn” within the meaning of Article 40.3.3 of the Constitution. That subsection reads as follows:

        “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

      Without necessarily accepting that in interpreting this subsection, I am not entitled to have regard to the context in which it was inserted into the Constitution (a point to which I will return), I believe, that applying the ordinary rules of interpretation applicable to a statute which at any rate to some extent, permit of context to be taken into account, this constitutional provision is dealing exclusively with the baby in the mother’s womb. Probably, the strongest indicator of this is the reference to “the equal right to life of the mother”. I interpret the subsection as envisaging what I might loosely call “a mother and baby situation”. The State is not conferring a right but rather acknowledging the majority view in the community that the baby in the womb has the right to be born alive but that this is not an absolute right in as much as there could be situations where the continued pregnancy endangered the life of the mother. In this context the expression “equal right” is somewhat strange because, in a sense, what the provision is stating is that in a clash of rights to life between the baby and the mother, the mother’s life is to have priority. I would also attach some significance to the expression “the unborn”. It has been said that this expression was unusual in its nakedness. I do not think that that is altogether correct but its meaning and context may be somewhat unusual. The expression “the unborn” is not by any means unique but normally, far from meaning an actual baby or foetus, it would tend to mean what I might describe as “the as yet unborn” or in other words future existences. The expression in this sense finds its way into two quotations in the Oxford Book of Quotations. I do not believe that the expression “the unborn” would ever be used to describe a stand alone embryo whether fertilised or unfertilised or whether frozen or unfrozen. It has ultimately been accepted on all sides in this appeal that the case does not involve any determination of when life begins. Furthermore, the experts on both sides were in agreement that there is no scientific proof of when life begins. The IVF treatment itself highlights the complexity of the succession of steps in the process leading up to a successful birth. It seems clear on the evidence before the court that pregnancy in any meaningful sense commences with implantation. I think I am entitled to take judicial notice of the fact that the referendum which led to the insertion of this provision in the Constitution was generally known as “The Abortion Referendum”.

      This brings me to the question already briefly adverted to, as to the extent to which I can take context into account in interpreting the Article. I have already expressed my view as to what the Article means applying only the ordinary rules of statutory interpretation as distinct from constitutional interpretation. I am not in fact convinced that the rules are identical. Judges play no part in the drafting of a statute, still less in the voting of it into law. Judges, however, are ordinary citizens and do participate in referenda. It would seem to me to be highly artificial if a judge could not also take judicial notice of and to some extent at least, use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum. Nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole. Abortion in this jurisdiction was criminalised by the Offences against the Person Act, 1861, an Act carried into the laws of the Irish Free State and in turn carried over under the 1937 Constitution. In theory, there could have been a referendum as to the possible insertion of a provision in the Constitution that the relevant sections in the Offences against the Person Act, 1861 would not be repealed. Those very provisions however had been interpreted in the English courts in a manner which would not have been acceptable to the perceived majority of the Irish people who favoured an absolute ban on abortion. This was the famous case of Rex v. Bourne [1939] 1 K.B. 687. The positive assertion in the Constitution of the right to life would have been perceived as preventing any watering down of the criminal law on abortion.

      It is appropriate, at this stage, to explain the relevant provisions in the 1861 Act and the aids to their interpretation deriving from their antecedents. This is important because if, as I believe, the insertion of Article 40.3.3 into the Constitution was with a view to preventing repeal or amendment of the existing abortion law, it is essential to understand what exactly that law prohibits.

      The two relevant provisions of the Offences against the Person Act, 1861 are sections 58 and 59. Section 58 reads as follows:

        “Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent shall be guilty of felony.”

      Section 59 then reads:

        “Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanour.”

      On the interpretation of these two sections, I find the judgment of Munby J., the English High Court, Queen’s Bench case of R (Smeaton on behalf of the Society for the Protection of Unborn Children) v. The Secretary of State for Health particularly persuasive. In that case Munby J. was dealing with the lawfulness or otherwise of “the morning after pill”. But what he had to say is equally relevant to this case. He takes note first of all of the expression “being with child” in section 58 and he relates it to wording of earlier Acts to which I will be referring. He further points out that sections 58 and 59 create three offences but that common to all three offences is the need to prove either an “intent to procure.. miscarriage” or in the case of an offence under section 59 knowledge of another’s “intent to procure .. miscarriage”. He goes on to point out that this intent to procure a miscarriage was what was required when the offence was a common law offence prior to 1803 (case law to support that is cited) and under every version of the offences created before the 1861 Act i.e., the Acts of 1803, 1828 and 1837. Munby J. sums up the position as follows:

        “Given the issue in the present case the last point requires emphasis. The essence of the offence, both at common law and in every version of the statutory regime since 1803 has always been the procuring of ‘miscarriage’. Putting the same point rather differently, ‘miscarriage’ is not a term of art introduced into the law in 1861. It is the word which Parliament and the lawyers have been using in this context for some two hundred years.”

      The judge goes on to explain that common to all the three offences was the need to prove that the relevant act was “unlawful”. This requirement gave rise to the English decision of R v. Bourne cited above. As a consequence of Bourne’s case and quite apart from the possibility of a statutory repeal or amendment, there was no guarantee prior to the constitutional amendment, that abortions of the kind not considered “unlawful” in Bourne’s case, might some day be regarded with impunity by Irish courts.

      I do not intend to survey in detail the pre-1861 law relating to abortion in a manner analogous to that done by Munby J.

      At common law, however, commission of the offence required that the woman was carrying the child and that there had to be quickening of that child. Both at common law and right through the various statutes leading up to the 1861 Act, there was no offence without a miscarriage and “miscarriage” obviously implied previous “carriage”. The 1803 Act used the expression “quick with child”. Likewise the 1828 Act. The 1837 Act required “intent to procure the miscarriage of any woman”.

      Both on a simple reading but even more so given its historical context, I would take the view that “the unborn” refers to a child in the womb not yet born. As Hardiman J. points out in his judgment, the Irish language version which of course is the authentic version bears this out.

      If it was intended by the Article that if a fertilised embryo was created outside the body of the woman, that embryo would have the constitutional right to life, I cannot imagine that the Article would be worded in that way. There would be no logic, for instance, in conferring the constitutional right to life on a suitable spare embryo duly frozen on the one hand and not to confer it on an unsuitable embryo. I do not believe that the constitutional provision was drafted or indeed voted upon with IVF treatment in mind. There may well be some who would take the view that IVF treatment necessarily destroys “life” but if the intention was that that view would prevail or indeed if the topic was under consideration at all, the Article would have been worded quite differently. Statutory regulation relating to spare embryos is one matter but constitutional protection of their lives is quite another. It is not easy to see how, in practice, the latter could be achieved but at any rate that is a matter for the Oireachtas and for the people and not for the courts. The function of the court is to interpret the Article as it stands and for the reasons which I have indicated, I am satisfied that there is no constitutional provision which has the effect of overriding the express objections of the father.

      I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.

      It is, however, up to the Oireachtas to provide such regulation. Even if it were possible, it would not be appropriate for the courts to attempt any guidance in this respect. I would be the first to acknowledge that it is not an easy task. One practical issue neatly illustrates the difficulty. It is common knowledge that some will argue against all use of spare embryos for medical purposes and indeed within that group there will be those who would object to even the creation, never mind the retention, of spare embryos. On the other hand, there are many who would bona fide hold the view that some regulated availability of an unimplanted embryo for medical purposes is a use which can enhance life. Hardly a week passes now when some new alleged medical use of an embryo is signposted in the media, one of the latest being a cure for total blindness. The moral and ethical problems in this area are legion. There is no common agreement on their resolution. Since most of these problems are of an ultra modern nature, I rather doubt that there is a constitutional solution to them, but that does not mean that there cannot and indeed should not be regulation by the Oireachtas. If there are constitutional aspects, they do not arise pursuant to the particular provision in the Constitution relied on in this case.

      There are two other points which I think it important to make. First of all, even with the traditional methods of conception and pregnancy there is a very high attrition rate.

      Dr. Wingfield, among others, gave some detailed evidence on this matter. Developing a view, she expressed in evidence “that a fertilised egg is a long, long way from being a human”. She went on immediately to say the following:

        “There are various studies in the literature showing that the attrition rate both in natural conceptions and in in vitrio conception is quite substantial and that the chances of a fertilised egg actually becoming a human being are quite slim. We know from IVF that if you start off with a hundred eggs only 3/4 % of those will actually form a human being.”

      It was then put to her did she mean by that that there would be a “successful pregnancy and birth of that child”. She replied in the affirmative but added:

        “There are many pitfalls along the way where the processes can go wrong and where development can progress abnormally and where the whole process is aborted because something has gone wrong.”

      This part of her evidence arose to some extent from questioning in relation to a statement she had made that although there is a natural tendency to regard the fertilised egg as a “baby” then to use her own words “science indicates that a fertilised egg is unfortunately a long, long way from being a human.” Dr. Wingfield developed that opinion further by saying:

        “It is unfortunate that we use the same term to apply to a 1-cell embryo and also to an eight week old embryo or foetus, which you can see on an ultrasound scan, you can hear its heart beat, you can see it moving and certainly that eight week embryo, I think the vast majority of people would regard as a baby and a person, but as a 1-cell entity, which is also called an embryo is a very, very different entity from that… There is a very big difference between an early pre-implantation embryo and an eight week old embryo.”

      Interestingly, the very next question put to her by Mr. O’Donnell, counsel for the Attorney General was prefaced by the remark “I think this is not significantly in dispute, and indeed I don’t think there is any serious dispute about the biological facts of the development of embryogenesis and the development of the embryo.” There are mountains of evidence of a similar vein but those extracts, in my view, which are not controversial, illustrate the unlikelihood that the constitutional provision with its relatively short and simple wording could have been intended to cover pre-implantation embryos.

      The second additional observation I would make is that the kind of situation which arose in this case, i.e. the marriage breaking up while the frozen embryos were in existence is likely rarely to occur. As already referred to in the judgment, there are sound medical reasons in ease of the mother who wants to have a baby by the IVF method, to provide for spare embryos. Even in the case of a stable marriage, it does not at all follow that following on a successful birth by the IVF method it would be intended or agreed by the couple that the spare embryos would be then used to produce a second child by the same method. The creation of the spare embryos may in many instances be intended merely for the purposes of their use if the first attempt fails, but not for their use if the first attempt succeeds. Again, with some people this may be controversial but with others it may seem perfectly reasonable. In a system of regulation which there should be, these matters can be teased out. But to my mind the complexity of them is itself a further indication that the simple right to life amendment, as drawn up, was not intended to resolve any of these issues. It had the single purpose of protecting the child (and by that expression I include the foetus) in the woman’s womb and nothing more.

      I would reject both the contractual and constitutional grounds of appeal and would, therefore, dismiss the appeal.

      Judgment delivered the 15th day of December, 2009 by Mr. Justice Fennelly

      1. I agree that the appeal should be dismissed. I am satisfied that the first-named respondent is not bound by any contract or agreement or by the application of equitable principles to permit the frozen embryos to be implanted. In this respect, I agree with the judgment of Geoghegan J. and with the reasons he gives.

      2. I am also satisfied that the frozen embryos do not enjoy the protection of the guarantees provided to the right to life of the unborn by Article 40.3.3 of the Constitution. I agree, for the reasons given in the judgments of Hardiman J. and Geoghegan J. that Article 40.3.3 does not extend to or include frozen embryos which have not been implanted. I do not think that the constitutional provision should be considered only as being intended to reinforce the effect of section 58 of the Offences against the Person Act, 1861. The people, in adopting the Eighth Amendment to the Constitution employed distinct, new and independent language.

      3. Finally, I join Hardiman J. in expressing concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland. It is disturbing, to use no stronger word, that some four years after publication of the Report of the Commission on Assisted Human Reproduction, no legislative proposal has even been formulated. Counsel for the Attorney General argued before us that there is no law or public policy regarding the protection of frozen embryos, in short that they have no legal status. As I interpret these submissions, the organs of the State have no present intention to propose any legislation. It is obvious that this is extremely difficult and sensitive subject-matter. It is controversial for all of the reasons mentioned by Hardiman J. and Geoghegan J. Nonetheless, it cannot be denied that the fertilisation of the ovum brings into existence, outside the womb, the essential unique components of a potential new individual human person. I agree with the judgments of Hardiman J. and Geoghegan J. that the frozen embryo is entitled to respect. This is the least that can be said. Arguably there may be a constitutional obligation on the State to give concrete form to that respect. In default of any action by the executive and legislative organs of the State, it may be open to the courts in a future case to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution.

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