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Irish man gave no consent for ex-wife to use embryos

24 July 2006
Appeared in BioNews 368

In a dispute between an Irish couple over the use of frozen embryos, created before they separated, a High Court judge has ruled that the man did not ever give consent for his estranged wife to use the embryos. Justice Brian McGovern ruled that the man - who in 2002 had signed a contract at a Dublin IVF clinic giving consent for three of the couple's fertilised egg to be placed inside his wife and three others to be placed in cold storage for potential future use - had not authorised his wife to use the frozen embryos for future IVF treatments. The case is similar to the case of Natallie Evans that has gone through the UK courts and to the European Court of Human Rights.

The marriage of 41-year old Mary Roche and 44-year old Thomas Roche came to an end in December 2002, soon after the woman gave birth to their daughter, following IVF treatment with the first three of the six embryos that the couple had created. The woman, who wants to have another child, argued in court last month that she should be permitted to use the remaining frozen embryos even without her husband's specific consent. She argued that he had consented to be a father and provider to any offspring created as the result of the procedure. However, her ex-husband argued that such a role should require his specific consent and that he wanted no further children with his former wife.

The judge found that 'there was no agreement, either expressed or implied, as to what was to be done with the frozen embryos in the circumstances that have arisen'. However, he did also state that the contracts signed by each of the couple at the Sims International Fertility Clinic were 'vague and inadequate'. He noted that they did not address the issue of marriage break-up, or the death of one of the partners, or any other changes in circumstances after the creation of the embryos.

The woman's lawyer, constitutional expert Gerard Hogan of Trinity College Dublin, also argued that frozen embryos should be included within the constitution's definition of 'the unborn'. A 1983 amendment to the constitution commits the state to protect the right to life of 'the unborn', but does not specify whether the right extends to frozen embryos. This means that the case must move on to open up wider issues about whether fertilised human eggs should enjoy a constitutionally protected right to life - a right that would possibly take precedence over those of Mr Roche. Ireland has not yet regulated the practice of IVF or related treatments. The judge acknowledge that in saying the constitutional issues must be considered, 'deeper waters' would be entered into as the country's constitutional ban on abortion would also need to be addressed.

Justice McGovern also said that the court must consider another fundamental point of law and ask whether the man, who is now in another relationship, can be 'forced' to become a parent again and be held financially responsible for the child. These next stages of the case are not expected to be decided until the autumn, due to the summer break of the Irish civil court system in August and September. In any case, however the issues are decided in the High Court, it is expected that the case will be appealed to the Irish Supreme Court.

Clinics give views on consent
Irish Health |  20 July 2006
Man wins right to stop estranged wife using embryos
The Irish Examiner |  18 July 2006
Now the big question: should a frozen embryo be protected by the Constitution?
The Irish Examiner |  19 July 2006
Ruling points to regulation need
Irish Health |  19 July 2006
21 December 2009 - by Dr Nadeem Shaikh 
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 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 thr...
4 June 2007 - by Danielle Hamm 
A divorced couple have applied to the Texas Supreme Court for rights over frozen embryos, created using their egg and sperm whilst they were still married. Randy and Augusta Roman underwent fertility treatment together before they separated in 2002. On the eve of the day the embryos...
8 December 2006 - by Professor Sally Sheldon 
2006 has witnessed significant litigation regarding the disposal of stored embryos. In the UK, the long-running court battle waged by Natallie Evans has reached its final chapter. Having lost her ovaries to cancer treatment, previously stored embryos created from Ms Evans' eggs and her ex-partner's sperm represent Ms Evans' last...
20 November 2006 - by Antony Starza-Allen 
The Irish High Court has ruled that frozen embryos are not covered under the 1983 constitutional abortion amendment (Article 40.3.3) protecting the right to life of 'the unborn'. The ruling comes as the second part of the court's previous decision forbidding Mary Roche from implanting her embryos...
13 March 2006 - by Professor Hazel Biggs 
Last week in the European Court of Human Rights (ECHR) Natallie Evans lost her battle to be permitted to try for a pregnancy using embryos that she and her former partner, Howard Johnston, created before she was rendered infertile by cancer treatment. The case is emotive in its subject matter...
7 March 2006 - by BioNews 
The European Court of Human Rights (ECHR) has issued its judgment in the case of Evans v the United Kingdom. Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, asked the court last September to rule whether UK law preventing her...
6 March 2006 - by BioNews 
Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, will hear tomorrow if her claim has succeeded in the European Court of Human Rights (ECHR). Last September, she asked the ECHR to consider her case, having been refused leave to appeal...
28 September 2005 - by BioNews 
Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, has asked the European Court of Human Rights (ECHR) to consider her case. Last December, the UK's highest court - the House of Lords - refused to hear her appeal, after her case was...
15 February 2005 - by BioNews 
Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, is taking her case to the European Court of Human Rights (ECHR). The embryos were created using her own eggs and sperm from her then partner, who later withdrew his consent to...
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