Woman loses appeal over frozen embryos

The_Minister

The Supreme Court has dismissed an appeal by a woman seeking to have three frozen embryos released to her for implantation.

It has also ruled that the term 'unborn' only applies after implantation in the womb and does not apply to frozen embryos, and therefore they are not afforded the legal protection guaranteed by article 40.3.3 of the Constitution.

All five presiding judges were in agreement in dismissing the appeal.
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The appeal was taken by a 43-year-old mother of two, Mary Roche, after she lost her High Court bid to have the embryos implanted in her womb so that she could become pregnant against the wishes of her estranged husband, Thomas Roche.

The Supreme Court expressed concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland.

Mr Justice Fennelly said it was 'disturbing' that four years after the publication of the Report of the Commission on Assisted Reproduction, no legislative proposal had ever been formulated.

The embryos were created after the Roches underwent IVF treatment in 2002.

Mrs Roche, who already had one child, became pregnant and had a child as a result of the IVF.

Shortly afterwards the couple separated.

The case concerns the fate of three surplus embryos not used in the original impregnation, which have been in frozen storage in a Dublin clinic since February 2002 and which Mrs Roche wishes to have implanted.

Her now estranged husband has said he does not want any more children and is opposed to the embryos being returned to her.

In November 2006 the High Court rejected Mrs Roche's argument that the embryos are protected by Article 40.3.3 of the Constitution, which protects the 'right to life' of the unborn.

The High Court ruled that the embryos are not 'unborn' within the meaning of the Constitution.

In the Supreme Court earlier this year, her lawyers argued the man had signed documents consenting to the remaining embryos being implanted.

They also argued under the Constitution, the State must protect and vindicate the right to life of the unborn.

Mr Roche's lawyers said there was no agreement between him and Mrs Roche as to what was to happen to the remaining embryos.

Even if there was consent, they argued, he was entitled to withdraw it.

The State argued that an embryo is not entitled to constitutional protection unless it is implanted in a woman's womb.

In her judgment Mrs Justice Susan Denham said this case was not about the wonder and mystery of human life.

She said this was a court of law that had been requested to make a legal decision on the construction of an article in the Constitution.

She said it was not an arena for attempting to define life.

She ruled that Article 40.3.3 envisaged a balancing act between the life of the mother and her unborn child and this could only exist where there was a physical connection between them.

She said the 'unborn' under this article of the Constitution refers to an embryo after implantation.

If frozen embryos were protected by the Constitution, the State would have to intervene to facilitate their implantation regardless of the wishes of the parents.

Mr Justice Adrian Hardiman said there was a marked reluctance on the part of the legislature to legislate on the issues around assisted human reproduction.

He said if the Oireachtas did not address such issues, Ireland may become by default an unregulated environment for practices that may become controversial.

A spokesman for the Department of Health said a memo went to Government in the past couple of weeks on issues relating to the area of assisted human reproduction.

He said legislation was expected next year.

Tbh, I'm glad she failed. I don't think it was fair on the husband that he should have to pay maintenance for a child he didn't want or create.

PirateShampoo

Poor little frozen baby's.

Where are the Pro lifers on this?

anniehoo

I kept changing my mind about this today and finally came to the conclusion that she should have got to keep them and have the chance to produce siblings for her current child.

Those embryos were created equally and consensually by both parents at the time so although their marital status has changed, the value of the lives of those embryos hasnt. Her husband entered into IVF with the expectation and hope "life" could and would be created. It was. They had one child.The fact that some of that life has been "on hold" doesnt make it any less right that the other embryos should be destroyed.

Ive always quandered about abortion and the "right to life" choice. But, even though its IVF, its basically "scientific sex"! You entered into a decision and life was created.Generally its the female who gets the ultimate decision in real life but on this occasion, if you have a willing and loving parent prepared to love and nurture the rest of that potential childs existance then i think it should be allowed go ahead. If the father under legal law has refused to allow it then something should be stated that legal guardianship is denied and therefore any maintenance should be nullified and the "father" has no legal,financial or parental rights from then on.

epgc3fyqirnbsx

anniehoo wrote: »

I kept changing my mind about this today and finally came to the conclusion that she should have got to keep them and have the chance to produce siblings for her current child.

Those embryos were created equally and consensually by both parents at the time so although their marital status has changed, the value of the lives of those embryos hasnt. Her husband entered into IVF with the expectation and hope "life" could and would be created. It was. They had one child.The fact that some of that life has been "on hold" doesnt make it any less right that the other embryos should be destroyed.

Ive always quandered about abortion and the "right to life" choice. But, even though its IVF, its basically "scientific sex"! You entered into a decision and life was created.Generally its the female who gets the ultimate decision in real life but on this occasion, if you have a willing and loving parent prepared to love and nurture the rest of that potential childs existance then i think it should be allowed go ahead. If the father under legal law has refused to allow it then something should be stated that legal guardianship is denied and therefore any maintenance should be nullified and the "father" has no legal,financial or parental rights from then on.

ah c'mon, it's all off between her and the husband, he doesn't want more kids and she was gonna have 'em anyway then hit him for cash

as my friend from Albania says 'Woman trouble is a lot less frequent in a country where its easier to shoot them than end up in court'

stovelid

I know it's a grey area but my gut instinct is that I'm glad she failed. I don't think it would be fair to expect him to support the children that would result from this.

Ickle Magoo

I'm completely torn on this topic...I can see both sides and I really don't know what the "right" thing to do is.

I can't believe IVF is available in Ireland yet has no statutory legislation. :eek:

anniehoo

Poppy Tasteless Rage wrote: »

she was gonna have 'em anyway then hit him for cash
'

stovelid wrote: »

I don't think it would be fair to expect him to support the children that would result from this.

Where does it state that she was after him just for the cash?

They both went through IVF (not an easy process) before they split and technically life was created. With an abortion, its a different kettle of fish as the woman physically has to carry the burden of the responsibility with whatever decision is made. But...the deed was done, regardless of whether it was in a petri dish or a hammered shag after too many After Shocks in Coppers. You have a potential life on standby..and the intention enough for me warrants giving the wife the right.

What if it was the other way around? You as a guy, dying for a child and had IVF with the ex-missus and had a surrogate willing to carry it for you. What then?

anniehoo

Oh and by the way it feckin amazes me that fertilised embryos in a lab can be destroyed, yet abortion is still illegal in this country.

stovelid

anniehoo wrote: »

Where does it state that she was after him just for the cash?

Not saying she is. But he'd be liable. You can only be concerned about your liability in these cases and not second-guessing somebody's else's wishes for the next 16 years.

Not that it's only about money. He clearly doesn't want any more children.

I said it was my gut instinct so I'm not without empathy for the woman here, but it's an edge case where the man actually gets a say in an entity (entities) that he was half-responsible for creating.

rumour

Anniehoo, I don't think you are quite right. The deed was done and a kid followed. IVF is precarious and does not guarantee results. The point being a number of eggs were fertilised to enhance the chance of success for a child they both agreed on.

No matter wether they are in a relationship or not agreeing to one child is not the same a agreeing to two or three.

anniehoo

stovelid wrote: »

He clearly doesn't want any more children.

I honestly think...TOUGH..it was done,end of! But under this circumstance then,what i said earlier should still stand

anniehoo wrote: »

If the father under legal law has refused to allow it then something should be stated that legal guardianship is denied and therefore any maintenance should be nullified and the "father" has no legal,financial or parental rights from then on.

COUCH WARRIOR

I don't see your reasoning there, considering the morning after pill is legal here.

Mossy Monk

I am delighted that she failed. He didn't want anymore children with her.

anniehoo

rumour wrote: »

Anniehoo, I don't think you are quite right. The deed was done and a kid followed. IVF is precarious and does not guarantee results. The point being a number of eggs were fertilised to enhance the chance of success for a child they both agreed on.

No matter wether they are in a relationship or not agreeing to one child is not the same a agreeing to two or three.

Potential parents entering into IVF are made aware that none or multiple embryos may be created thats why it shouldnt be entered into lightly by anybody. So, id be fairly sure thats theres no "tick the box" to the amount of embryos fertilised as its the luck of the draw tbh. The "luck of the draw" being ..you will end up with "no babies" or being "jon and kate plus 8"

davyjose

Ex-Husband's a prick. He could have easily green-lighted this and had nothing more to do with it.

Elessar

I am relieved for fathers everywhere with this decision. I think that woman is a selfish **** to demand another child without the fathers consent. It's goddamned selfish and lazy. She doesn't want to bother her arse meeting another partner and doing the same thing, like anyone else would do if you split up and wanted more kids.

A ruling that a woman has the right to have children without the fathers consent would have set a dangerous precedent.

stovelid

anniehoo wrote: »

I honestly think...TOUGH..it was done,end of! But under this circumstance then,what i said earlier should still stand

I think rumour made a very good point that sums up my feelings. The child already exists that he acquiesced to jointly create in the round of IVF that they participated in.

Outside of that, I'm not really that inclined to discuss the morality of disposing of the remaining embryos if that is the way, I suspect, the discussion is headed. I'm looking purely at the situation from the perspective of his choice (or indeed, the conflicting choices of himself and his wife), not the morality or viability of the embryos.

davyjose wrote: »

Ex-Husband's a prick. He could have easily green-lighted this and had nothing more to do with it.

I may be wrong here, but I'm not sure he could have, legally, I assume she would have the right to seek support at any stage even if she stated otherwise earlier on.

namloc1980

anniehoo wrote: »

I honestly think...TOUGH..it was done,end of! But under this circumstance then,what i said earlier should still stand

What a bizarre point of view..."I'm going to force you to be the father of a child you don't want"...TOUGH?!? In IVF they fertilise way more embryos than is needed to increase the chances of the woman becoming pregnant. The man didn't want anymore children with this lady....Supreme Court was spot on with their UNANIMOUS decision!

Gummy Panda

anniehoo wrote: »

Potential parents entering into IVF are made aware that none or multiple embryos may be created thats why it shouldnt be entered into lightly by anybody. So, id be fairly sure thats theres no "tick the box" to the amount of embryos fertilised as its the luck of the draw tbh. The "luck of the draw" being ..you will end up with "no babies" or being "jon and kate plus 8"

but would it be okay if both of them wanted the remaining embryos destroyed?

I'm glad she lose tbh. No one should dictate that my DNA be used in creating a life without my consent. I don't consider a frozen embryo a life. It's just the potential for life.

anniehoo

namloc1980 wrote: »

What a bizarre point of view..."I'm going to force you to be the father of a child you don't want"...TOUGH?!? In IVF they fertilise way more embryos than is needed to increase the chances of the woman becoming pregnant.

I dont know why you think my opinion is bizarre. The fact that science has created multiple potential lives in a lab is bizarre to me anyway(and i work in a lab).

The husband consented to this in 2002 and again im sure he was made aware that more than one could be fertilised. If they were still married today they would be over the friggin moon that they still had the chance to have more of their genetically identical babies (brothers and sisters) 7 years later.

corcaigh07

the right decision, father would have ended up hating the child, mother sounds a bit mad!

stovelid

anniehoo wrote: »

If they were still married today they would be over the friggin moon that they still had the chance to have more of their genetically identical babies (brothers and sisters) 7 years later.

He might well not be over the moon, even if they were still married. Nobody can know this.

corcaigh07

anniehoo wrote: »

I dont know why you think my opinion is bizarre. The fact that science has created multiple potential lives in a lab is bizarre to me anyway(and i work in a lab).

The husband consented to this in 2002 and again im sure he was made aware that more than one could be fertilised. If they were still married today they would be over the friggin moon that they still had the chance to have more of their genetically identical babies (brothers and sisters) 7 years later.

things change, i agree with everone else, your opinion is odd. thread would be boring without you though!

namloc1980

anniehoo wrote: »

I dont know why you think my opinion is bizarre. The fact that science has created multiple potential lives in a lab is bizarre to me anyway(and i work in a lab).

The husband consented to this in 2002 and again im sure he was made aware that more than one could be fertilised. If they were still married today they would be over the friggin moon that they still had the chance to have more of their genetically identical babies (brothers and sisters) 7 years later.

The point is they are no longer together and he doesn't want anymore children with this woman...2002 is a long time ago in their relationship and in this case the man certainly has the right to withdraw his consent to have children with a woman he is no longer with.

anniehoo

stovelid wrote: »

He might well not be over the moon, even if they were still married. Nobody can know this.

Nope..course not! But, this is how im amazed at how decisions like this are made. How the hell does anyone know what the right or wrong answer is???

Gummy Panda

anniehoo wrote: »

I dont know why you think my opinion is bizarre. The fact that science has created multiple potential lives in a lab is bizarre to me anyway(and i work in a lab).

tbh, I think your opinion is bizarre as well. I have the feeling this discussion would be different if it was the husband laying claim to the wonens frozen eggs for implantation in a surrogate mother.

namloc1980

anniehoo wrote: »

Nope..course not! But, this is how im amazed at how decisions like this are made. How the hell does anyone know what the right or wrong answer is???

The right answer is not to allow this lady have children by a man who does not consent to it.

drkpower

anniehoo wrote: »

The husband consented to this in 2002 and again im sure he was made aware that more than one could be fertilised. If they were still married today they would be over the friggin moon that they still had the chance to have more of their genetically identical babies (brothers and sisters) 7 years later.

Are you suggesting that someone should not be entitled to withdraw his consent?
And the terms of his consent (presumably) extended to creating the embryos with a view to implanting one of them. His consent did not extend to one party actually using the other embryos at a later date without the agreement of the other party.

If he decided he wanted to use the embryos to implant into his new girlfriend, should he be allowed to?

stovelid

If she had won the case, it wouldn't exactly be nice for the resulting child(ren) to know that that their father had went to the Supreme Court to stop their implantation.

All in all: the best outcome. Quite simply, the man should not be forced into having children with a woman he is no longer in a relationship with and when their consensual IVF treatment already yielded the child that they wanted.

anniehoo

Im shocked how much i support the husband in this case until i started stating my opinions here.Weird! I actually hadnt thought about it that much really

Im constantly amazed how we come to make the moral and legal decisions in the world sometimes even though it makes sense to "the majority". I dont think my opinion is that "out there" is it?

anniehoo

Gummy Panda wrote: »

I have the feeling this discussion would be different if it was the husband laying claim to the wonens frozen eggs for implantation in a surrogate mother.

No id think the same if either "parent" was involved. If there was a willing father with a surrogate mother (and no genetic maternal involvement) then i think thats fine too.

God! I cant believe im the only one tonight thinking this way!Hmmmm....:p

drkpower

Annie; if you had an ill-fated dalliance with the Jehovah's witnesss faith in 2002 and signed an advance directive stating you did not want blood in the event of an emergency, do you think you should be allowed to revoke that consent in 2009 when you are no longer of the JW faith?

anniehoo

Ah drkpower c'mooon i cant be the only one ...seriously???? You're not stickin me in with the "weirdo" lot after this thread are ya

Im shockin myself here as i still havent changed my opinion and id normally be sittin on the fence with most things.

Alanstrainor

I have to say i agree with the majority here, the woman is mad to think that she has a right to use the remaining embryos to have more kids. They both agreed to use IVF treatment to have one child the first time around. Not to have more kids 7 years down the line when they are separated.

drkpower

anniehoo wrote: »

Ah drkpower c'mooon i cant be the only one ...seriously???? You're not stickin me in with the "weirdo" lot after this thread are ya

Im shockin myself here as i still havent changed my opinion and id normally be sittin on the fence with most things.

If you cant see my analogy and you cant answer the question, Im not surprised you havent changed your opinion.

TimTim

My understanding is the IVF was done for the purpose of having one child which they did and since they seperated afterwards she can't use the remaining embryos without his consent which I'd tend to agree with.

What I've found really interesting is the supreme court giving defining partly what 'unborn' is considered to be. Now that we have no laws on IVF and since these embryos don't have a physical attachment to the mother they aren't considered unborn and therefore have no protection under the consitution or the law because they are no laws for situations like this.

To the best of my knowledge there is nothing stopping anyone now doing research on embryos for stem cells etc in Ireland. Will be interesting on seeing what the govt do about that.

anniehoo

drkpower wrote: »

If you cant see my analogy and you cant answer the question, Im not surprised you havent changed your opinion.

I dont know why you're comparing the Jehovahs Witnesses non-blood donation receiving belief-thingy to this "debate" thats why i cant answer. Its no where near the the same..at all!!!!

Kelda09

namloc1980 wrote: »

The point is they are no longer together and he doesn't want anymore children with this woman...2002 is a long time ago in their relationship and in this case the man certainly has the right to withdraw his consent to have children with a woman he is no longer with.

Totally aggree namloc1980. Im so glad with the result, if the ex consented, then fine, but jesus she sounds like shes a few sandwiches short of a picnic tbh. It's pretty much like saying to a woman 'you aggreed to have a baby in '02, you cant change your mind now'. could you imagine the reaction if that happened!

Bottle_of_Smoke

People keep focusing on the money but if a child was created he could well want to support it; his own flesh and blood.

He simply didn't want a child with this woman and for this situation to arise. Delighted with the supreme court's ruling.

OutlawPete

Bottle_of_Smoke wrote: »

He simply didn't want a child with this woman and for this situation to arise. Delighted with the supreme court's ruling.

Quite right.

The embryos are not hers to do as she wishes with.

If the shoe was on the other foot and HE wanted them to use with a surrogate mother, then the case would not have even got this far.

kumate_champ07

Im glad he won, men usually always lose any case in relation to 'children', its a win for Irish men!

If the kid was born would he have the ability to withstand really cold weather unclothed? must be weird bein frozen and not knowing if your gonna be put in a vadge or just binned

The_Minister

davyjose wrote: »

Ex-Husband's a prick. He could have easily green-lighted this and had nothing more to do with it.

Or she could have sued him for maintenance, as she intended.

K-9

The test for this is just applying the case the other way round!

It's that simple. If you agree with the father having the same rights and using a surrogate mother, fair enough. If not but you side with her, why?

OutlawPete

The_Minister wrote: »

Or she could have sued him for maintenance, as she intended.

Did she? I missed that. What a bast*rd.

I can't understand anyone that thinks she should have got them.

994

The_Minister wrote: »

Tbh, I'm glad she failed. I don't think it was fair on the husband that he should have to pay maintenance for a child he didn't want or create.

Of course, thousands of men have to do the same when a woman falls pregnant naturally - only women have the right to choose.

K-9

The_Minister wrote: »

Or she could have sued him for maintenance, as she intended.

Bunny boiler type then.

johnny_knoxvile

HB are bringing out a frozen embryo ice lolly in responce to the interest in this case. Nyom!

Zulu

I'm delighted for him.
What she was proposing to do was preposterous.

I hope she got smacked up with the legal fees?

spank_inferno

This case is kind of odd.
The woman lost in the high court and then took it to the Supreme court.

The reason I think its odd is the considerable cost this would have been.
Having a case go through both courts must cost many thousands of euro for both parties.

So why would he drag her estranged husband through that?
Both parties may have been wealthy enough or there must have been a considerable emnity between them.

Anyway I think the court made the right decision.
An un-implanted embryo is not a life.... it he the possibility of life subject to a sucessfull implantation.

IV treatement always tries to create a surplus of embryos if the initial implantation attempts failed.

They were sucessfull so the extra empryos were surplus to requirements.

That the man would have had to pay for this extra child without consent would have been wrong.

drkpower

anniehoo wrote: »

I dont know why you're comparing the Jehovahs Witnesses non-blood donation receiving belief-thingy to this "debate" thats why i cant answer. Its no where near the the same..at all!!!!

It is the same in the context that I raised it in.
If you consent to something in 2002, are you entitled to revoke that consent in 2009. You appear to think not but Im not entirely sure as you havent answered the question yet.

You wonder why your opinion hasnt changed, yet then you seem incapable of thinking about the subject; that is probably the reason.

dearg lady

drkpower wrote: »

Annie; if you had an ill-fated dalliance with the Jehovah's witnesss faith in 2002 and signed an advance directive stating you did not want blood in the event of an emergency, do you think you should be allowed to revoke that consent in 2009 when you are no longer of the JW faith?

anniehoo wrote: »

I dont know why you're comparing the Jehovahs Witnesses non-blood donation receiving belief-thingy to this "debate" thats why i cant answer. Its no where near the the same..at all!!!!

Annie, I'm not sure why it's so difficult for you to make the connection between the question asked by drk and the topic at hand. He's not suggesting you're a jehovahs witness, the point is, if you made a conscious decision and signed an agreement in 2002(to go through with IVF OR to not recieve a blood transfusion) and 7 year later changed your mind, would you feel the original documenatation still stood, and you wouldn't be entitle to change your mind?

I'm with the majority here, both parties would need to agree now for this to go ahead. I just hope the govt legislates for this kind of thing in the future.