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Pre-Implantation Embryos and the Irish Constitution

As we blogged earlier the Supreme Court today decided the case of Roche v Roche concerning, inter alia, the constitutional status of spare embryos created through IVF treatment but not implanted. The case also had important private law aspects but it is the constitutional issue that is most relevant to us at HRinI. Having now read the judgments in this case I have picked out some of the relevant quotes re the constitutional issue from the various judges. As I suspected earlier, the matter is perhaps not as cut and dried and it at first appeared in the news reports mainly because of some equivocation in the Chief Justice’s judgment although the remaining judgments seem to me on an early reading quite categorical in their finding that pre-implantation embryos do not have constitutional protection.

It is appropriate to begin with the judgment of the Chief Justice which is available here. Following an overview of the moral and ethical dilemmas faced in considering when it might be said that ‘life’ begins, the Chief Justice held that this is essentially a legislative matter as opposed to one of pure constitutional interpretation:

One comes back to the fundamental issue in this case namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, ethical, philosophical, theological and scientific. It is an issue on which engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

Absent a broad consensus on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

….

…in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The Courts do not have at its disposal objective criteria to decide this as a justiciable issue….The onus rests in the Oireachtas, to make the initial policy determination so as to define by law when ‘the life of the unborn’ acquires protection. The other alternative is an amendment to the Constitution.

….

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos, constitute “life of the unborn” within the meaning of Article 40.3.3.

I don’t think  CJ’s judgment holds that constitutional protection begins at implantation and that is that. Rather it think it says that we can not be satisfied that the constitutional protection begins pre implantation. Making that decision is not a judicial role. It is a policy matter. He essentially invites the Oireachtas to legislate in this context. However, the CJ’s judgment stands alone in this context. The starkest contrast is perhaps with the judgment of Denham J available here:

45. This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland. The question raised is whether the term “unborn” in the Constitution includes the three frozen embryos in issue in this case. It is a matter of construing the word in the Constitution to determine its constitutional meaning.

46. This is not an arena for attempting to define “life”, “the beginning of life”, “the timing of ensoulment”, “potential life”, “the unique human life”, when life begins, or other imponderables relating to the concept of life. This is not a forum for deciding principles of science, theology or ethics. This is a court of law which has been requested to interpret the Constitution and to make a legal decision of interpretation on an article in the Constitution.

In the part of her judgment that encapsulates perhaps the purest textual constitutional reasoning, Denham J lays down her holding with far greater conclusiveness than did the Chief Justice. Although this quotation is long I think it is worth reproducing here in full. Denham J held (my emphasis):

59. The unborn is considered in Article 40.3.3° in relation to the mother. The special relationship is acknowledged. Of course there is a relationship between the frozen embryos in the clinic and the mother and the father – but not the link and relationship envisaged in Article 40.3.3°. Article 40.3.3° was drafted in light of the special relationship that exists uniquely between a mother and the child she carries. It is when this relationship exists that Article 40.3.3° applies.

60. Further, the relationship is viewed through the prism of the right to life. It applies to a relationship where one life may be balanced against another. This relationship only exists, this balance only applies, where there is a physical connection between the mother and the unborn. This occurs only subsequent to implantation of the embryo. Thus the balancing of the right to life described in Article 40.3.3° may only take place after implantation. Therefore an unborn under Article 40.3.3° is established after an embryo is implanted.

61. The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother.

62. This analysis may be put in a slightly different form. The right to life of the unborn is not stated as an absolute right in Article 40.3.3°. Rather, it is subject to the due regard to the right to life of the mother. The right to life of the mother is not stated as an absolute right either. Article 40.3.3° refers to a situation where these two lives are connected and a balance may have to be sought between the two lives. Thus the physical situation must exist to require such a balancing act. No such connection exists between the plaintiff and the three surplus embryos now frozen and stored at the Clinic. There is no such connection between the lives of the mother and the embryos at the moment. The relationship which might require the consideration of the right to life of the unborn and the equal right of the mother does not arise in the circumstances.

63. This connection, relationship, between the embryos and the mother does not arise until after implantation has occurred. After the implantation of an embryo the relationship between the embryo and the mother changes. The mother has carriage of the embryos, becomes pregnant, and the embryo enters a state of “unborn”. At that time an attachment begins between the two lives. It is that attachment which gives rise to the relationship addressed in Article 40.3.3°.

64. The words of Article 40.3.3° refers to a situation where the rights of the mother and the unborn are engaged. This occurs after implantation. Thus Article 40.3.3° does not apply to pre-implantation embryos.

This is clearly to be contrasted with the Chief Justice’s more reticent approach and appears to lay down a far clearer constitutional interpretation. More or less the same reasoning (about the need for connection between embryo and mother in the sense of carriage of the embryo before the constitutional protection would be engaged) was contained in the decision of Hardiman J available here. Fennelly J’s judgment is short but also categorical in its finding that pre-implantation embryos do not enjoy constitutional protection (judgment here). Geogheghan J. focused perhaps somewhat more on historical interpretation than did some other judges but he was clear in his conclusion that the constitution was not intended to deal with spare embryos of the type at issue in this case and that constitutional protection does not engage until implantation. In this judgment we find perhaps the starkest of the multiple indications that the Court is of the view that legislation is urgently required. Geogheghan J held:

I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.

I suspect we should see at least some legislative activity in this sphere in the next year or so.

UPDATE 16/12/2009: Today’s Irish Times reports that Mary Harney, the Minister for Health, will shortly propose the drafting of legislation on human reproduction. In an opinion piece Carol Coulter rightly notes that in the absence of a legal framework related to assisted reproduction there is scope for further cases:

These cases are unlikely to be the last, pending clarification of the law. We have not yet had, for example, a case testing the rights of a surrogate mother in relation to a child she bore for another couple, but such cases have arisen in other jurisdictions, and it would be naive to imagine they may not arise.

Nor have we seen the law tested in relation to the adoption, via implantation, of frozen embryos by a couple who did not create them, where the biological parents were married and were therefore a family protected by the Constitution, whose offspring are not normally adoptable.

The editorial in the Irish Times is also devoted to this case and calls the decision “a model of clarity which will have important effects far beyond the confines of its circumstances” (although it does mistakenly attribute the comments about legislative vacuum arguing contravening the spirit of the Constitution to Fennelly J–as we noted above these comments were in the judgment of Geogheghan J. Fennelly J did write “[a]rguably there may be a constitutional obligation on the State to give concrete form to” respect for the potentiality of life in an embryo).

In the Irish Independent Dearbhail McDonald writes that “the failure by politicians to give concrete form to the right-to-life amendment is not only potentially unconstitutional, it is unconscionable”. The editorial in the Irish Examiner is a strongly worded call for legislative action, not only because regulation is needed but also because of what appear to be concerns about an alleged democratic deficit and institutional appropriateness that may arise in relation to constitutional courts making decisions of this kind:

As [the Report of the Commission on Assisted Reproduction] gathers dust — along with how many more? — our courts are replacing our legislature. Our politicians are running for cover, an option not available to the Supreme Court. They must make a ruling and in far too many cases by so doing they are forced to do what our politicians are elected to do: to decided what is permissible and what is not.

The results may be questionable on so very many fronts but most of all it is questionable because none of us ever voted to elect someone a Supreme Court judge; it is neither fair to the court nor fair to the electorate.

The editorial goes on to severely criticise political parties (and especially the Green Party) for evasion on controversial and morally divisive issues such as abortion.

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