Frozen Embryos Are Not The ‘unborn’


The Supreme Court made headlines this week when it considered the age old question of when life begins. The case arose out of an appeal by a mother of two, Mrs. Roche, 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. Our firm looked after the interests of two Consultant Gynaecologists and Directors of the Clinic involved in the case.

Mrs. Roche argued before both the High and Supreme Courts that the frozen embryos deserved the protection of Article 40.3.3 which acknowledges the right to life of the unborn.

The Supreme Court unanimously dismissed the appeal of Mrs. Roche. The five-judge Court found that frozen embryos are not the ‘unborn’ within the meaning of Article 40.3.3 of the Consitution and therefore not entitled to Constitutional protection. The Court ruled that the “unborn” refers to a child within the womb, rather than pre-implantation embryos and State protection of embryos only arises after implantation. However the Court also stressed that the fact that the embryos in this case do not attract constitutional protection does not mean they should not be treated with respect as entities having the potential to become a life in being.

As well as the question of the right to life of the ‘unborn’, the issue of consent was crucial in this case. Mrs. Roche claimed she was entitled to have the remaining embryos implanted because of consent forms signed by Mr. Roche. The Court ruled however that the forms provided by the clinic were for the purposes of obtaining the couple’s consent to medical procedures only and did not establish any contractual relationship between them and nor was there any agreement as to the use of the surplus embryos.

While the ruling has provided some clarity on the constitutional definition of the ‘unborn’, it has also highlighted the need for legislative reform in this area. There is presently no legislation in Ireland governing in-vitro fertilisation and human embryo status. This legislative vacuum poses significant legal and ethical difficulties for both patients and clinicians and this was recognised by the Supreme Court. The Court highlighted the failure of the State to regulate fertility treatment and stressed that the matter is serious and urgent, warning that “science will not stand still waiting for us to update our laws”.

In the aftermath of the Supreme Court decision, the Department of Health advised that a memo was sent to Government in recent weeks on issues relating to the area of assisted human reproduction and legislation is expected next year. If you have any queries arising from this article, please contact a member of the Healthcare team.