By the eighth amendment to the Irish Constitution, adopted in 1983, Article 40.3.3 of the Constitution now provides:

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.

Yesterday, in a closely-watched case and a long-awaited decision, the High Court gave judgment on the question whether in vitro embryos constituted ‘unborn’ for the purposes of this provision. In MR v TR [2006] IEHC 359 (15 November 2006), McGovern J held that they did not.

The facts were desperately sad. The embryos were the result of an earlier attempt at IVF; but then the marriage broke down; and the former wife wished to use the remaining embryos in an attempt to get pregnant by IVF again, but the former husband refused. In an earlier stage in the case (in a judgment delivered on 18 July 2006, which I have not been able to locate online) McGovern J held that the contract between the couple and the IVF clinic did not amount to former husband’s express or implied consent to the implantation of the three frozen embryos in the present circumstances. So, the case came back for determination of the constitutional question whether the embryos were ‘unborn’ who had rights under Article 40.3.3 which could be vindicated by implantation in the former wife, notwithstanding the absence of the former husband’s consent. It is not a straightforward issue. As McGovern J himself acknowledged:

… it is precisely because of this uncertainty and lack of agreement among the scientific and medical community as to when life begins that most people agree that embryos in vitro are deserving of special respect and that their very creation raises serious moral and ethical issues which in themselves impose restraints on what may or may not be done with them.

But, as a judge, however difficult, he had to come to a decision. And he decided that it emerged clearly from earlier authorities that

the Courts have declared that the Eight Amendment to the Constitution giving rise to the wording in Article 40.3.3 was for the purpose of making secure the prohibition on abortion expressed in s.57 and 58 of the Offences Against the Person Act, 1861 and not to permit abortion or termination of pregnancy except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother if such termination were not effected. The Courts have never, thus far, considered whether the word “unborn� in Article 40.3.3 includes embryos in vitro.

There has been no evidence adduced to establish that it was ever in the mind of the people voting on the Eight Amendment to the Constitution that “unborn� meant anything other than a foetus or child within the womb. To infer that it was in the mind of the people that “unborn� included embryos outside the womb or embryos in vitro would be to completely ignore the circumstances in which the amendment giving rise to Article 40.3.3 arose. While I accept that Article 40.3.3 is not to be taken in isolation from its historical background and should be considered as but one provision of the whole Constitution, this does not mean that the word “unborn� can be given a meaning which was not contemplated by the people at the time of the passing of the Eight Amendment and which takes it outside the scope and purpose of the amendment.

No evidence has been adduced by the plaintiff which would enable the Court to hold that the word “unborn� in Article 40.3.3 includes embryos outside the womb or in vitro. I have therefore come to the conclusion that the word “unborn� within Article 40.3.3 does not include embryos in vitro and therefore does not include the three frozen embryos which are at the heart of the dispute between the plaintiff and the first named defendant.

It is not for the Courts to decide whether the word “unborn� should include embryos in vitro. This is a matter for the Oireachtas, or for the people, in the event that a Constitutional Amendment is put before them.

This is an important decision, and similar to the result in the European Court of Human Rights (ECHR) in Evans v UK 6339/05 [2006] ECHR 200 (7 March 2006). Nevertheless, however much I might agree with the outcome, I think it unfortunate that McGovern J only relied on one strategy of constitutional interpretation. He focussed exclusively on what was in the minds of the people when they voted on the eighth amendment. But such an approach, original or historical interpration, is only one of many, including literal, purposive, teleological, evoluvative, and so on. This is not to say that these various methods would have had a different outcome – they may or may not have done. However, it seems to me at least likely that they could support an alternative conclusion, and that those whose philosophical positions are opposed to the outcome could therefore rely on (one of) them. In the circumstances, therefore, a justification of why he chose to rely on the historical approach to constitutional interpretation in favour of other possible approaches, or an argument as to why those others also supported the outcome, would have made for a more robust and defensible conclusion.

Finally, I have to agree with another of McGovern J’s observations:

In many countries IVF treatment is governed by strict rules and regulations. It seems to me that in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence.

Such regulation cannot come soon enough; though even then, it might not provide an easy resolution to such issues. In the UK, the Human Fertilisation and Embryology Act 1990 did not prevent a similar case (Evans v Amicus Healthcare Ltd[2003] EWHC 2161 (Fam) (01 October 2003); aff’d [2004] EWCA Civ 727 (25 June 2004); leave to appeal refused: House of Lords, 29 Nov 2004; of which Evans v UK (mentioned above) was the appeal to the ECHR) having a similar resolution. In any event, if they have not already done so, IVF clinics will have to amend their standard form contracts expressly to cover this kind of unfortunate situation.

Update 16 November 2006: There is an important piece by my colleague Gerry Whyte in today’s Irish Times (for other coverage, see: Irish Examiner | Irish Independent | Irish Times). His essential point is this:

As one who argued for the legal protection of the embryo in the context of the Report of the Commission on Assisted Human Reproduction, I am concerned as to the implications of this decision. Those implications are, immediately, that the wife in this case cannot insist on the transfer of the frozen embryos to her uterus in the hope of bringing about a pregnancy. However, the decision may also mean that domestic Irish law does not prohibit various medical and scientific procedures that entail the deliberate destruction of the embryo, including embryonic stem cell research.

If there is to be an appeal (update: 21 December 2006: as now seems very likely), these kinds of issues can considered and dealt with.

Update (2 April 2007): Jacco Bomhoff and Lorenzo Zucca have an excellent note on the initial ECHR decision in Evans at (2006) 2 European Constitutional Law Review 424–442 (sub req’d). The judgment of the Grand Chamber of the ECHR is provisionally scheduled for Tues 10 April 2007 at 3.30pm.