The Supreme Court of the Republic of Ireland has ruled that a woman may not use her frozen embryos after her estranged husband, whose sperm was used to create them, refused consent. Mary Roche, 43, and her husband Thomas had one child in 1997. They then turned to IVF (in vitro fertilisation) treatment at the SIMS Fertility Clinic in Rathgar, Dublin, which produced six embryos. Three of the embryos were implanted, resulting in the birth of one child. The other three were kept frozen, but the couple separated not long after.

Mrs Roche began legal action to gain access to the other embryos. In 2006, the High Court stated the embryos were not protected by the Republic's Constitution. In December 2009, the five judges of the Supreme Court unanimously dismissed Mrs Roche's appeal. They stated that Article 40.3.3 of the Irish Constitution, derived from the 1983 referendum on the Anti Abortion Amendment, was put in place to prevent decriminilisation of abortion without the consent of the people as a whole. It protected the rights of the unborn child and of the mother in equal measure, but these rights did not extend to preimplanted embryos. The forms filled in by the couple at the clinic merely expressed consent to the medical procedures, but were not a binding contract that the embryos must be used.

Mrs Justice Denham stated that 'the question raised is whether the term 'unborn' in the Constitution includes the three frozen embryos in issue in this case', adding: 'This is not an arena for attempting to define 'life', 'the beginning of life', 'the timing of ensoulment'... or any other imponderable relating to the concept of life.'

The judges stated that the issue of when life begins was a matter for the Oireachtas (the Irish legislative body) and not the courts. They also said it was disturbing that four years after the Report of the Commission On Assisted Reproduction, there was no legislation put in place to regulate these issues. As a result of these criticisms, Health Minister Mary Harney has promised that her department will begin drawing up new legislation to begin addressing these matters.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.