Wednesday 25 April 2018

Embryo pair claim €2.5m costs

Couple in IVF court fight asks State to pick up legal bill

Tim Healy

THE Attorney General should pay the estimated €2.5m legal costs in the frozen embryos case, lawyers for the couple involved told the Supreme Court yesterday.

Mary Roche (43) had sought to have three frozen embryos released from storage so that she could become pregnant again -- against the wishes of her estranged husband, Thomas Roche.

The Supreme Court yesterday reserved its ruling on liability for costs of the her long-running, unsuccessful action in the High and Supreme Courts.

The Chief Justice, Mr Justice John Murray, said the court, when it gave its ruling on costs, would also address the status of the undertaking given by the SIMS Fertility Clinic, Rathgar, Dublin, to retain the embryos in frozen storage pending the outcome of proceedings.

The undertaking should continue pending that ruling, he said. Gerard Hogan, counsel for Mrs Roche, said his client wished to liaise with the clinic about the embryos.

The Supreme Court last month unanimously dismissed the appeal by Mrs Roche against the High Court's refusal to order the clinic to release the embryos to her after ruling the embryos are not the "unborn" within the meaning of Article 40.3.3 of the Constitution (the anti-abortion amendment of 1983).

In submissions on costs yesterday, lawyers for both Mr and Mrs Roche urged the Supreme Court to uphold the High Court decision to award costs to the couple against the Attorney General on grounds of the lack of a legislative or regulatory regime in the IVF area and the fact the case raised points of constitutional law of exceptional public importance.

John Rogers, counsel for Mr Roche, said that given the background to the case his client found it difficult to seek costs against his wife.

This case was "one of the most outstanding" in terms of public importance, especially given the court's interpretation of Article 40.3.3 in the context of IVF treatment and transcended any personal or family interests, Mr Rogers added.


Mr Rogers said the Attorney General had argued before the High Court that Mr Roche should be deemed to have given consent to implantation of the embryos in his wife arising from his prior agreement to fertility treatment.

This was "an attempt to avoid" the major issue in the case -- Article 40.3.3 -- but that could not be avoided and this couple had to go to the courts because of the absence of laws, counsel said.

Mr Hogan said the High Court costs order should stand in this "wholly exceptional" case and also sought his side's Supreme Court costs against the Attorney General.

Mrs Roche brought the case because she was in acute legal difficulties due to the lack of clarity on the meaning of Article 40.3.3 and lack of regulation of IVF, he said.

Brian Murray, counsel for the Attorney General, accepted this was an important case with "a significance transcending its facts" and the outcome was of relevance to assisted human reproduction.

However, he argued, the court should draw a distinction between Mr and Mrs Roche in terms of costs and it would be unjustifiable to direct the Attorney General to bear both costs.

Mr Murray added that Mrs Roche had chosen to appeal the High Court decision, and it was difficult to see why the Attorney General should pay her costs.

The embryos were created after fertility treatment undertaken by Ms Roche and her husband in early 2002. The couple separated later that year.

Irish Independent

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