R v R Case 2006 and 2009

“[An embryo] is a new human being which is engaged in dialogue with the mother from the point of fertilisation."

Professor Gunther Rager, giving evidence in the RvR case, The Irish High Court, 2006

On 15th November 2006 a High Court judgment rejected the case of a woman seeking to have three frozen embryos released to her against the wishes of her estranged husband.

The woman argued that the embryos had a right to life under the Constitution, but the High Court ruled that the protection of the unborn does not include embryos outside the womb. The woman and her husband had a child after infertility treatment and three extra embryos were frozen before the couple split up.

Mr. Justice Brian McGovern decided that the court would rule first whether the consent given by the husband four years ago to the fertility treatment at a Dublin clinic was still applicable in relation to the frozen embryos subsequently being used, and whether any consent that might have existed should be revoked as a result of the couple's separation and the man's desire not to have any more children with his estranged wife. The second issue to be determined was whether the remaining three frozen embryos came within the constitutional protection afforded in Article 40.3.3 and therefore required to be protected.

On the initial point as to whether the husband's consent was required, counsel for the wife, Mr. Gerard Hogan, argued that it would be clear from the evidence of the woman concerned and from the consent documents that at all stages it was envisaged that the frozen embryos would be used, not destroyed, and that she always intended to endeavour to have another child by this process.

Counsel for the wife also argued that the consent that she and her husband gave together to this procedure was irrevocable. Her counsel pointed out that when she had the first three embryos - which led to a pregnancy - implanted, her consent alone was required to the medical procedure involved. Therefore, it was argued that only her consent is required for the same procedure a second time

The woman was seeking to have the embryos released to her and implanted in her womb with a view to pregnancy, arguing that the protection offered in the Constitution to the unborn child included embryos.

However, the High Court concluded that the three frozen embryos are not unborn within the meaning of the Constitution. Mr Justice Brian McGovern said that it had never been in the minds of people voting on the 1983 Constitutional Amendments on Article 40.3.3 that the unborn meant anything other than the foetus in the womb. The judge also said it was not possible for the court to decide when unborn life begins - that was not necessary to resolve the issues in this case.

Mary Roche decided to appeal the decision to the Supreme Court.

The Supreme Court on Tuesday 15th December rejected a request by a woman to be implanted with frozen embryos brought into being during IVF treatment. Lawyers for the woman Mary Roche had argued that the embryos were protected by article 40.3.3. of the Irish Constitution. The five judge court upheld the High Court’s findings that the embryos are not the "unborn" within the meaning of Article 40.3.3 of the Constitution and therefore not entitled to Constitutional protection, saying that the "unborn" referred to a child within the womb and not pre-implanted embryos. The court also ruled that consent was required to proceed with the implantation.

Comment on the Case

The Supreme Court judgment in the RvR case has the potential to wipe out all constitutional protection for the human embryo outside the womb. Life Institute has asked “that the Government was now obliged to respect the wishes of the people, and should act immediately to prevent abuses of human life such as experiments on human embryos.”

The High Court judgment in the RvR case was a travesty. The case involved a separated woman who wished to have her frozen embryos released to her following the breakdown of her marriage. In the High Court Justice McGovern ruled that Article 40.3.3 did not protect embryonic unborn children outside the womb, since, he decided, it was not the intention of the electorate in 1983 to extend protection to such embryos.

The decision was preposterous. Justice McGovern had no crystal ball which allowed him to see into the minds of more than a million people and to decipher the intentions of each and every one. Test-tube babies had been born prior to the referendum in 1983 and there was no mention of restricting the right to life at any stage of development in the amendment. However, the Supreme Court upheld this ruling. They were, no doubt, emboldened to do so by the actions of the Attorney General, who was meant to be acting for the unborn child, and who, with the approval of the government, followed Justice McGovern’s lead by arguing in the Supreme Court appeal hearing that the Constitution did not protect the embryo ex utereo. Some of the Supreme Court Justices may have been influenced by personal convictions – one of them, Justice Adrian Hardiman, was the Chairman of the Anti-Amendment Campaign which opposed the 1983 pro-life amendment, which was approved by a two-third majority of the electorate.

However, several judges in their rulings pointed out that the human embryo was entitled to respect, and Mr Justice Nial Fennelly said that it may be open to the courts in a future case to consider if an embryo enjoys constitutional protection under other provisions of the Constitution.

Speaking on radio after the judgment, Íde Nic Mhathúna of Youth Defence said that it was now “imperative that the Government respect the wishes of the people and move to protect human life from the moment of conception”. She pointed out that in 2005, 2006, 2007 and 2008 opinion polls had consistently found that the majority of the electorate wished to protect embryonic unborn children. In the weeks following the RvR judgment, yet another poll showed a margin of two-to-one supporting legal protection for the human embryo.

Ms Nic Mhathúna also pointed out that the report from the Commission on Assisted Human Reproduction was not the model for legislators to follow. “Two separate bodies, the Commission on Assisted Human Reproduction and the Irish Council for Bio-ethics, asked for submissions from the public on the treatment of early human life,” she said. “And on both occasions the vast majority of public submissions supported protecting human life from conception and said that any form of lethal experiments on embryonic life should be absolutely banned. But then both bodies ignored the public’s view and instead recommended legislation that would have made us one of the most liberal countries in the world in regulating this area – even allowing for the creation of human embryos for experimentation, and for cloning.”

“What’s clear now is that the government needs to act to restore the protection to the human embryo which was presumed to have existed since 1983,” she added. Ms Nic Mhathúna also said that any attempt to use the RvR judgment to introduce embryo research would be “unacceptable”.