Embryos 'have no right to life'
Thursday November 16 2006
A MOTHER-of-two yesterday lost her High Court battle to have three embryos implanted in her against the wishes of her estranged husband.
The embryos were left over after successful IVF treatment undertaken by Mary Roche (41) and her husband Thomas (44) four years ago and have been in frozen storage at a Dublin clinic since.
The three frozen embryos will now continue to be kept in the Sims Clinic, Rathgar, Dublin, for an as yet undefined period.
Protecting
Mary Roche had claimed that the embryos were safeguarded from destruction by the constitutional amendment protecting the unborn.
But Mr Justice Brian McGovern yesterday found the embryos are not "unborn" within the meaning of Article 40.3.3 of the Constitution - the 'right to life' amendment inserted after a referendum in 1983 - and therefore do not attract the constitutional protection for the unborn set out in that amendment.
Giving his conclusion that the embryos are not unborn within the meaning of Article 40.3.3, the judge said the issue of whether or not Mr Roche as a matter of law can be forced to become a parent by the implantation of the embryos in his estranged wife's uterus does not arise.
It was also unnecessary for him to decide whether the people, in adopting the amendment, had intended that the use of widely available forms of contraception would become unconstitutional, the judge added.
Article 40.3.3 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 law to respect, and as far as practicable, by its laws to defend and vindicate that right."
The judge said he was satisfied, when the people endorsed that amendment, their understanding of "unborn" was a foetus in the womb and did not extend to either embryos outside the womb or embryos in vitro. The "clear purpose" of the amendment was to deal with the issue of abortion, he found.
The judge also declined to make a finding on when human life begins, ruling such a finding was not necessary in order to interpret the meaning of "unborn" in Article 40.3.3.
"It is not for the courts to decide whether the word 'unborn' should include embryos in vitro," he said. "That is a matter for the Oireachtas, or for the people, in the event that a constitutional amendment is put before them."
It was also up to the Oireachtas, not the courts, to decide what steps should be taken to establish the legal status of embryos in vitro, he added.
He adjourned the case for one week to allow lawyers for Mr and Mrs Roche, the State and the SIMS fertility clinic, to consider his 26 page judgment and address the issues arising, including who is to pay the substantial costs of the action.
Outside court, Mrs Roche's solicitor Alan Daveron, said she was "very disappointed" with the decision. Mr Daveron said his side would consider the judgment and all their various options."
Treatment
The three embryos were left over after six were created during IVF treatment undertaken by the Roches at the Sims clinic in 2002. The couple who already had a son in 1997, were referred for the IVF treatment and six viable embryos were created. Three were inserted in Mrs Roche's uterus and the remaining three were frozen. Mrs Roche became pregnant and gave birth to a daughter in late 2002.
Towards the end of the second pregnancy, Mr Justice McGovern said difficulties arose which resulted in a judicial separation.
Mr Roche has said he does not wish to become a father of any child that might be born as a result of the implantation of the remaining frozen embryos.
- Ann O'Loughlin
