IntroductionIt is proposed to answer question 3 “Write a case note on the Roche v Roche & Ors., 2009 IESC 82”. Information from the British and Irish Legal Information Institute website was used to research the case 1.This was a highly unusual and unique case. The case commenced in 2004 with the decision of the high court taken over 2 dates in 2006. The final verdict was taken by judge Murray C.J. in the supreme court in 2009. The central issue in the case involved three embryos, which had been frozen and stored in a fertilisation treatment clinic. The court sided with the defendant.FactsThe history of the case involved a couple who got married in 1992. Shortly after their son was born in 1997, the mother (the plaintiff) underwent surgery for an ovarian cyst and lost two-thirds of her right ovary. The couple was eventually referred for IVF treatment in 2001 and six viable embryos were created. Three were inserted into the plaintiff’s uterus, which resulted in her becoming pregnant and subsequently given birth to her daughter in 2002. The remaining three embryos were frozen. Towards the end of the plaintiff’s pregnancy, the couple had marital difficulties and the husband (first named defendant) left their family home. The plaintiff wished to have the three frozen embryos implanted in her uterus and the first defendant did not wish this to happen and did not want to become the father of any child that might have been born as a result of the implantation of the frozen embryos.The case involved two separate claims. A Civil claim, on the basis that the plaintiff was entitled to have the three frozen embryos implanted in her, by agreement between herself and her husband. A Constitutional claim, the plaintiff claims that she is entitled to have the embryos implanted in her because they are within the meaning of the phrase “the unborn” as that phrase is used in Article 40.3.3 of the Constitution. The implantation of the embryos is necessary to preserve the right of the unborn to life.IssuesIn relation to the Civil claim, the first defendant (husband) signed 3 consent forms. The first form entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. The second form he signed, acknowledging that he would become the legal father of any resulting child. While the third form he signed, was a consent to embryo freezing. The courts had to make a decision, whether the “husband” consented to the plaintiff’s argument by prior agreement to the implantation of the surplus frozen embryos.In relation to the Constitutional claim, article 40.3.3 states “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” The plaintiff argued that the three surplus embryos constitute the “unborn” for the purposes of Article 40.3.3 and that the State, (which includes the Court), is obliged to facilitate the implantation of the embryos into the plaintiff’s uterus having regard to the constitutional duty to protect unborn life. The courts were required to determine whether the term “unborn” in the Constitution includes the three frozen embryos in this case.JudgementsThe courts made a decision on the Civil case on the 18th July 2006. In this, the High Court held: (i) that there was no agreement between the plaintiff and her husband as to what was to be done with the frozen embryos in the circumstances that have arisen; and (ii) that her husband had not entered into an agreement which required him to give his consent to the implantation of the three frozen embryos. The courts made their decision after considering similar cases “Re the Marriage of Witten III 672 N.W. 2M 768 (Iowa 2003)”, “Davis v. Davis 842 S.W. 2d 588, 597 (Tenn. 1992)”. These cases involved frozen embryos by couples who have separated. The courts, in both cases, stated that mutual agreement is preferred and if no agreement exists then “Ordinarily, the party wishing to avoid procreation should prevail”. However, the fact of the matter was that in this case, no agreement, express or implied, was given as to the use of the three surplus frozen embryos.A decision was made on the constitutional case on the 15th November 2006. In this, the High Court declared that the frozen embryos were not the “unborn” within the meaning of Article 40.3.3 of the Constitution. The learned High Court judge held “that it was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro”. Both claims were appealed. However, all appeals were dismissed and the original High Court decision remains.ImpactThis particular case highlighted issues that should be addressed. The first was putting provisions in place to deal with the area of consent. If the fertilisation treatment clinic got both parties to sign legal documents stating what agreed action would be taken in relation to the frozen embryos, it could have avoided a civil claim by the plaintiff.The issue of when human life begins has never been defined and as the frozen embryos have no legal status in Irish Law, it may be open to the courts in a future case to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution.The broader issues surrounding article 40.3.3 and the 8th amendment has been and still is a very divisive issue in Ireland. Since the 8th amendment was voted into law in 1983, there have been 4 additional referendums in connection with the “rights of the unborn”, with another referendum scheduled in 2018.All Judges involved in the case concurred that the plaintiff had no legal right within the Constitution and that the frozen embryos outside the worm does not warrant protection under article 40.3.3. This is something I would fully agree with.