After the Supreme Court judgments in R -v- R, the Oireachtas has to bring in legislation acknowledging and safeguarding the human status and right to life of human embryos not implanted in a woman.
Following the Supreme Court rulings in R -v- R, human embryos in vitro have no legal protection. I’m going to look through each of the five judgments in turn to see what, pointers there may be in them as to what the next step has to be if we are to move towards the goal of putting in place legal protection for embryonic human life in vitro. The rulings cover four areas, three legal issues and a mixum gatherum of judges’ opinions and musings on the human and moral status of human embryos not implanted in a woman, and related fundamental issues.
The three legal issues are:
(i) whether the frozen embryos are protected under 40.3.3,
(ii) whether the contracts between the couple and the IVF clinic allowed the mother to have the frozen embryos transferred to her, or allowed the father to prevent this, and
(iii) whether the mother could insist on the embryos being handed over to her or the husband could prevent this.
I am only going to look at the way each judgment deals with the first issue. The rest, perhaps, on other occasions.
The 5 judgments are available at http://www.courts.ie/Judgments.nsf/frmJudgmentsByYearAll?OpenForm&Start=1&Count=30&Expand=1.4&Seq=2
Sunday, January 10, 2010
Tuesday, January 5, 2010
1. The Judgment of the Chief Justice, Mr Justice John Murray
The 5 judgments are available at http://www.courts.ie/Judgments.nsf/frmJudgmentsByYearAll?OpenForm&Start=1&Count=30&Expand=1.4&Seq=2
The Chief Justice’s judgment runs to 13 pages. His opening sentence reads: 'The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. extends to three fertilized embryos which have been frozen and stored in a clinic.' (p. 1)
The Supreme Court had to address this issue because one of the grounds of Mrs Roche’s case was that the three embryos were ‘unborn’ who enjoyed legal protection of their right to life under Article 40.3.3, and that they therefore had a right to an opportunity to be born and so should be released to her so that she could offer them that opportunity as their mother.
He notes that Article 40.3.3 deliberately mirrored the general protection afforded by Article 40.3.1 to the personal rights of the citizen, the first subsection of which starts with a statement that gives the basis of equality before the law: 'All citizens shall, as human persons, be held equal before the law.' It is ‘as human persons’ that all citizens are to be held equal before the law. So when Article 40.3.3 speaks of the ‘equal’ right to life of mother and unborn, therefore, it is saying that the State is acknowledging that the unborn has a right to life equal to that of a human person. And it states this without explicitly going into, or taking sides on, disputed scientific, ethical or religious issues.
Before Article 40.3.3 was inserted by the people into the Constitution in 1983, some had argued that the then-proposed pro-life amendment wasn’t needed because Article 40.3 already afforded constitutional protection to life before birth, referring in support of that view to the obiter dicta of Walsh J. in Magee -v- Attorney General [1974] I.R. 284 at 312, where he stated: 'On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.'
Mr Justice Murray says that Article 40.3.3 ‘effectively extended in express terms to the ‘life of the unborn’ or ‘mbeo gan breith chun a mbeatha’ the constitutional protection for the personal rights of citizens referred to in Article 40.3.1.' (p. 5) Article 40.3.3, he says, ‘is clear in its intent. It is intended to protect human life before birth’ and he continues, the ‘much more apt’ Irish version ‘can fairly be interpreted as meaning the right of life not yet born to live or to its life.' (p. 5) Indeed, he says a few sentences later that the Irish version might have been better stated in English as ‘the right to life of the unborn life’ but that such a formulation would have been ‘inelegant and tautologous’. The life referred to, in a provision on personal rights, is, Mr Justice Murray says, ‘obviously, human life.’ (p. 5)
The provision does not use words like ‘child’ or ‘foetus’, but simply the term ‘the unborn’. As to the reason for this, Mr Justice Murray is in ‘No doubt’. Because there is disagreement about when life begins, ‘whether on conception or implantation,’ (p. 5) the inclusion of terms like child or foetus, he says, could have left it unclear when the protection started to apply.
But he is clear that Article 40.3.3 did not purport to 'confer' the right to life. Rather it 'acknowledged' that the unborn’s right to life exists.
He recognizes from the debate at the time shows that one part of the intention sought to be achieved by the insertion of the amendment was to prevent Sections 58 and 59 of the Offences against the Person Act, 1861 being weakened here as they had been in the English courts in R v. Bourne [1939] 1KB 687, and another was to preclude a Supreme Court decision like that in the US which found a women had a right to an abortion, as happened in Roe v. Wade [1973] 4 10 US 113. The response to the wide ranging debate here ‘transcended legislative considerations’ and the issues were addresses in a constitutional amendment that is ‘not prescriptive or prohibitive in its terms.’ (p. 7)
He sums up the meaning of Article 40.3.3 as follows: 'In my view the provision of the Constitution was intended to embrace human life before birth and to extend to it, in express and positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.' (p. 7)
He turns next to the assertion made in the appeal that Article 40.3.3 was not intended and should not be interpreted as applying to the frozen embryos in this case ‘by reason of the fact that the Article only contemplated life in the womb.’ (p. 7) He points out that even in IVF, the new life has to be placed within the mother, and to implant there in order to grow and be born, but, while accepting that ‘the natural connection between the unborn child and the mother’s life constitutes a special relationship’, he agrees with the statement of Mr Justice Hederman in Attorney General v. X [1992] 1 I.R. at 72, who said in the course of his consideration of Article 40.3.3: 'But one cannot consider the unborn life only as part of the maternal organism.'
Mr Justice Murray concludes in regard to this element of the case, 'In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her rights in certain circumstances and cannot logically, in my view, be interpreted as devaluing the equal right to life of the unborn. Therefore, I cannot accept the argument that simply because the embryo exists outside the womb that it is incapable of falling under the protection of Article 40.3. ... If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child.' (pp. 8-9)
He turns now to address ‘the fundamental question’ in the case, ‘whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40.3.3.’ (p. 7) It is really important to notice that he is not saying the fundamental question is Do the frozen embryos have the qualities of human life? but Can the Supreme Court determine whether the frozen embryos have the qualities of human life within the meaning of Article 40.3.3? There is a huge difference between these two questions and it has everything to do with what the next step should be in the aftermath of the Supreme Court rulings in R -v- R.
If I understand his reasoning correctly, for Mr Justice Murray the obstacle that lies in the way of the Supreme Court deciding whether the frozen embryos have or do not have the qualities of human life within the meaning of Article 40.3.3, and so draw down the protection for the unborn that Article 40.3.3 provides, is the fact that there is disagreement on the question when life begins. He mentions two views, it begins at conception, or it begins at implantation. He acknowledges that this issue was debated prior to the vote in the referendum on the proposed Amendment, but adds that the provision itself ‘is resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying its protection.’ (p. 9) And he says that at the time the Oireachtas decided on the wording of Article 40.3.3, there was no consensus either on when human life begins or when human life can be deemed or treated as having begun. He adds that a world-wide debate and discussion continues to this day about when human life begins and what its moral status is, pointing in this regard to the evidence given by expert witnesses on both sides in the High Court in the case: 'The range of views expressed or referred to in that evidence underscore the absence of any broad multi-disciplinary consensus as to when life begins and in particular as to whether it should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for present purposes.' (p. 10) Mr Justice Murray points out that counsel for Mrs Roche acknowledged that this question ‘must be viewed from many standpoints, moral ethical, philosophical theological and scientific.’ (p. 11) It is, he adds, an issue which ‘engenders passionate views on each side in virtually all disciplines.’ (p. 11)
It is this threefold quality that, in Mr Justice Murray’s view, renders it inappropriate for the Court to rule on the issue, (i) that it concerns questions of fundamental importance, namely, at what point does human life begin and from what point onward can and should its right to life be protected, (ii) that there are opposing expert views in all the disciplines whose perspectives are relevant, and (iii) that these opposed views are passionately held.
Thus he concludes: '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 available to it, 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.' (p. 11)
His conclusion is has a positive element and a negative element.
The positive element is our main pointer from his judgment as to what the nature of the next step must be. H e says that the proper organ of State to decide this issue is the Oireachtas not the Courts:
'Therefore 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 best be protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas.' (p. 11)
The negative element is his conclusion that the issue at the heart of this case is non-justiciable, that is, it is, in and of its nature not of the kind that the Court should be left to decide upon. Precisely because the issue is so fundamental and there are opposed expert and passionately views on it, the Court if it made a judgement would be taking sides where the very experts it had called could not agree: ‘the Court does not have its disposal objective criteria to decide this as a justiciable issue.’ He cites a previous case to clarify the core issue, the criterion by which one judges that an issue is non-justiciable by the Court: 'Issues are not justiciable before the Courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 9 US 1962, "a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion: … " That is the policy of this Court in this case. 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. (p. 12)
Mr Justice Murray then states his formal conclusion on this, the key issue: '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. (p. 12)
Pointer
My intention in taking this close look at the judgments is to see what pointers if any there are in them to what we should do next in the wake of the R -v- R rulings. The pointer from Mr Justice Murray’s judgment is clear and explicit: ‘ … it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.’ (p. 11) ‘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.’ (p. 12)
Mr Justice Murray is saying it is up to the Oireachtas to define by law the protection to be provided to human embryos not implanted in a mother.
My practical conclusion from this is that those of us who see human embryos as equal members of the human family, thus, have a responsibility as democrats to get in touch with our political representatives, and work to persuade them to bring in legislation protecting the right to life of the vulnerable embryonic human lives in vitro.
The Chief Justice’s judgment runs to 13 pages. His opening sentence reads: 'The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. extends to three fertilized embryos which have been frozen and stored in a clinic.' (p. 1)
The Supreme Court had to address this issue because one of the grounds of Mrs Roche’s case was that the three embryos were ‘unborn’ who enjoyed legal protection of their right to life under Article 40.3.3, and that they therefore had a right to an opportunity to be born and so should be released to her so that she could offer them that opportunity as their mother.
He notes that Article 40.3.3 deliberately mirrored the general protection afforded by Article 40.3.1 to the personal rights of the citizen, the first subsection of which starts with a statement that gives the basis of equality before the law: 'All citizens shall, as human persons, be held equal before the law.' It is ‘as human persons’ that all citizens are to be held equal before the law. So when Article 40.3.3 speaks of the ‘equal’ right to life of mother and unborn, therefore, it is saying that the State is acknowledging that the unborn has a right to life equal to that of a human person. And it states this without explicitly going into, or taking sides on, disputed scientific, ethical or religious issues.
Before Article 40.3.3 was inserted by the people into the Constitution in 1983, some had argued that the then-proposed pro-life amendment wasn’t needed because Article 40.3 already afforded constitutional protection to life before birth, referring in support of that view to the obiter dicta of Walsh J. in Magee -v- Attorney General [1974] I.R. 284 at 312, where he stated: 'On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.'
Mr Justice Murray says that Article 40.3.3 ‘effectively extended in express terms to the ‘life of the unborn’ or ‘mbeo gan breith chun a mbeatha’ the constitutional protection for the personal rights of citizens referred to in Article 40.3.1.' (p. 5) Article 40.3.3, he says, ‘is clear in its intent. It is intended to protect human life before birth’ and he continues, the ‘much more apt’ Irish version ‘can fairly be interpreted as meaning the right of life not yet born to live or to its life.' (p. 5) Indeed, he says a few sentences later that the Irish version might have been better stated in English as ‘the right to life of the unborn life’ but that such a formulation would have been ‘inelegant and tautologous’. The life referred to, in a provision on personal rights, is, Mr Justice Murray says, ‘obviously, human life.’ (p. 5)
The provision does not use words like ‘child’ or ‘foetus’, but simply the term ‘the unborn’. As to the reason for this, Mr Justice Murray is in ‘No doubt’. Because there is disagreement about when life begins, ‘whether on conception or implantation,’ (p. 5) the inclusion of terms like child or foetus, he says, could have left it unclear when the protection started to apply.
But he is clear that Article 40.3.3 did not purport to 'confer' the right to life. Rather it 'acknowledged' that the unborn’s right to life exists.
He recognizes from the debate at the time shows that one part of the intention sought to be achieved by the insertion of the amendment was to prevent Sections 58 and 59 of the Offences against the Person Act, 1861 being weakened here as they had been in the English courts in R v. Bourne [1939] 1KB 687, and another was to preclude a Supreme Court decision like that in the US which found a women had a right to an abortion, as happened in Roe v. Wade [1973] 4 10 US 113. The response to the wide ranging debate here ‘transcended legislative considerations’ and the issues were addresses in a constitutional amendment that is ‘not prescriptive or prohibitive in its terms.’ (p. 7)
He sums up the meaning of Article 40.3.3 as follows: 'In my view the provision of the Constitution was intended to embrace human life before birth and to extend to it, in express and positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.' (p. 7)
He turns next to the assertion made in the appeal that Article 40.3.3 was not intended and should not be interpreted as applying to the frozen embryos in this case ‘by reason of the fact that the Article only contemplated life in the womb.’ (p. 7) He points out that even in IVF, the new life has to be placed within the mother, and to implant there in order to grow and be born, but, while accepting that ‘the natural connection between the unborn child and the mother’s life constitutes a special relationship’, he agrees with the statement of Mr Justice Hederman in Attorney General v. X [1992] 1 I.R. at 72, who said in the course of his consideration of Article 40.3.3: 'But one cannot consider the unborn life only as part of the maternal organism.'
Mr Justice Murray concludes in regard to this element of the case, 'In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her rights in certain circumstances and cannot logically, in my view, be interpreted as devaluing the equal right to life of the unborn. Therefore, I cannot accept the argument that simply because the embryo exists outside the womb that it is incapable of falling under the protection of Article 40.3. ... If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child.' (pp. 8-9)
He turns now to address ‘the fundamental question’ in the case, ‘whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40.3.3.’ (p. 7) It is really important to notice that he is not saying the fundamental question is Do the frozen embryos have the qualities of human life? but Can the Supreme Court determine whether the frozen embryos have the qualities of human life within the meaning of Article 40.3.3? There is a huge difference between these two questions and it has everything to do with what the next step should be in the aftermath of the Supreme Court rulings in R -v- R.
If I understand his reasoning correctly, for Mr Justice Murray the obstacle that lies in the way of the Supreme Court deciding whether the frozen embryos have or do not have the qualities of human life within the meaning of Article 40.3.3, and so draw down the protection for the unborn that Article 40.3.3 provides, is the fact that there is disagreement on the question when life begins. He mentions two views, it begins at conception, or it begins at implantation. He acknowledges that this issue was debated prior to the vote in the referendum on the proposed Amendment, but adds that the provision itself ‘is resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying its protection.’ (p. 9) And he says that at the time the Oireachtas decided on the wording of Article 40.3.3, there was no consensus either on when human life begins or when human life can be deemed or treated as having begun. He adds that a world-wide debate and discussion continues to this day about when human life begins and what its moral status is, pointing in this regard to the evidence given by expert witnesses on both sides in the High Court in the case: 'The range of views expressed or referred to in that evidence underscore the absence of any broad multi-disciplinary consensus as to when life begins and in particular as to whether it should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for present purposes.' (p. 10) Mr Justice Murray points out that counsel for Mrs Roche acknowledged that this question ‘must be viewed from many standpoints, moral ethical, philosophical theological and scientific.’ (p. 11) It is, he adds, an issue which ‘engenders passionate views on each side in virtually all disciplines.’ (p. 11)
It is this threefold quality that, in Mr Justice Murray’s view, renders it inappropriate for the Court to rule on the issue, (i) that it concerns questions of fundamental importance, namely, at what point does human life begin and from what point onward can and should its right to life be protected, (ii) that there are opposing expert views in all the disciplines whose perspectives are relevant, and (iii) that these opposed views are passionately held.
Thus he concludes: '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 available to it, 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.' (p. 11)
His conclusion is has a positive element and a negative element.
The positive element is our main pointer from his judgment as to what the nature of the next step must be. H e says that the proper organ of State to decide this issue is the Oireachtas not the Courts:
'Therefore 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 best be protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas.' (p. 11)
The negative element is his conclusion that the issue at the heart of this case is non-justiciable, that is, it is, in and of its nature not of the kind that the Court should be left to decide upon. Precisely because the issue is so fundamental and there are opposed expert and passionately views on it, the Court if it made a judgement would be taking sides where the very experts it had called could not agree: ‘the Court does not have its disposal objective criteria to decide this as a justiciable issue.’ He cites a previous case to clarify the core issue, the criterion by which one judges that an issue is non-justiciable by the Court: 'Issues are not justiciable before the Courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 9 US 1962, "a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion: … " That is the policy of this Court in this case. 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. (p. 12)
Mr Justice Murray then states his formal conclusion on this, the key issue: '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. (p. 12)
Pointer
My intention in taking this close look at the judgments is to see what pointers if any there are in them to what we should do next in the wake of the R -v- R rulings. The pointer from Mr Justice Murray’s judgment is clear and explicit: ‘ … it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.’ (p. 11) ‘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.’ (p. 12)
Mr Justice Murray is saying it is up to the Oireachtas to define by law the protection to be provided to human embryos not implanted in a mother.
My practical conclusion from this is that those of us who see human embryos as equal members of the human family, thus, have a responsibility as democrats to get in touch with our political representatives, and work to persuade them to bring in legislation protecting the right to life of the vulnerable embryonic human lives in vitro.
After R -v- R what next? Pointers from the 5 Supreme Court Judgments - Introduction
5th January 2010
After R -v- R what next? Pointers from the 5 Supreme Court Judgments
The pro-life community in Ireland is weighing up what to do following the Supreme Court rulings in R -v- R. I’ve been reading the 5 judgments and it seems to me there are many pointers in them that leave little or no doubt as to what the next step has to be. So I’m picking out these pointers, one judgement at a time, having a look at them.
I'm looking at the judgement of the Chief Justice, John Murray first. The conclusion is that the pointer from Mr Justice Murray’s judgment is clear and explicit: ‘ … it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.’ (p. 11) ‘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.’ (p. 12)
Mr Justice Murray is saying it is up to the Oireachtas to define by law the protection to be provided to human life not implanted in a mother.
Those of us who see human embryos as equal members of the human family, thus, have to do our duty as democrats, get in touch with our political representatives, and work to persuade them to bring in legislation protecting the right to life of the vulnerable embryonic human lives in vitro.
After R -v- R what next? Pointers from the 5 Supreme Court Judgments
The pro-life community in Ireland is weighing up what to do following the Supreme Court rulings in R -v- R. I’ve been reading the 5 judgments and it seems to me there are many pointers in them that leave little or no doubt as to what the next step has to be. So I’m picking out these pointers, one judgement at a time, having a look at them.
I'm looking at the judgement of the Chief Justice, John Murray first. The conclusion is that the pointer from Mr Justice Murray’s judgment is clear and explicit: ‘ … it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.’ (p. 11) ‘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.’ (p. 12)
Mr Justice Murray is saying it is up to the Oireachtas to define by law the protection to be provided to human life not implanted in a mother.
Those of us who see human embryos as equal members of the human family, thus, have to do our duty as democrats, get in touch with our political representatives, and work to persuade them to bring in legislation protecting the right to life of the vulnerable embryonic human lives in vitro.
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