The Weekend Post
This week's Post continues the analysis of the High Court judgment in R v. R
Part 2: Where scientific experts differ, it’s not for a judge to decide between them
The High Court judgment given by Mr Justice McGovern
The judgment of Mr Justice Brian McGovern in the High Court in R v. R was delivered on 15th November 2006. The ‘principal’ issue to be considered, he says, is ‘whether the frozen embryos are “unborn” for the purposes of Article 40.3.3 of the Constitution’.
Significant differences between expert witnesses on when life begins
A central issue in the case is the fact that different witnesses gave opposed or irreconcilable views on when the life of a human individual begins, which puts the Court in the position of having to take sides on an issue in which it has no specialist expertise or mandate to decide, in this case, whether human embryos which are not implanted in a woman are human beings, when they began to be human beings and how may one decide these two questions.
Mr Justice McGovern notes that witnesses gave different answers to the question when life begins.
Expert witnesses for the wife ‘argued that from the moment of fertilisation of the ovum by the sperm a new human life begins.’
Others ‘postulated that it was only when the embryo became implanted in the uterus that the potential to be born existed and that human life began at that point.’
Yet others argued that human life began ‘at the formation of the primitive streak’ and others again ‘offered the view that it was impossible to say when human life begins.’
Where scientific experts differ, it’s not for a judge to decide between them
Mr Justice McGovern concludes from this difference of opinion that it is outside the proper competence of the Court to decide among these views because more than scientific and medical expertise is involved in saying that what is in front of them is or is not a living human being:
'It is possible for Scientists and Embryologists to describe in detail the process of development from the ovum to the embryo and on the stage when it becomes a foetus after implantation of the embryo in the wall of the uterus, but in my opinion, it is not possible for this Court to state when human life begins.'
Where individuals and groups in society differ about what constitutes a human being or when human life begins, and when it should be protected, it’s not for a judge to decide between them
Mr Justice McGovern rightly makes two further observations and draws a further conclusion from them. He notes
‘The point at which people use the term “human being” or ascribe human characteristics to such genetic material depends on issues other than science and medicine.’
And these other issues often include ethical and religious views and values about which there are significant deep-rooted and strongly held feelings:
For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a “human being”.
So again he draws a conclusion about the limits of competence and authority of courts.
But it is not the function of the courts to choose between competing religious and moral beliefs.
He supports his conclusion by citing remarks to the same effect made by Munby J. in The Queen on the application of Smeaton v. Secretary of State for Health [2002] 2 FLR 146. The question before the court in that case was whether the supply, administration and use of the morning-after pill was a criminal offence under Sections 58 and 59 of the Offences against the Person Act, 1861 as it is used with intent to procure a miscarriage:
‘I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and to some, transcending importance. But I must emphasis (sic) that so far as the Court is concerned, this case has nothing to do with either morality or religious belief.
‘The issue I have to decide is not whether the same and use of the morning after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable.
What I have to decide is whether it may constitute an offence under the 1861 Act.’
Munby J. continues by quoting supporting remarks made in another case which makes the same point,
‘Cases such as this, and others in the field of medicine … raise moral, religious and ethical issues on which, as Lord Browne-Wilkinson pointed out in Airedale NHS Trust v. Bland [1993] A.C. 789, [1993] 1 FLR 1026, at 879 E, 880 A and 1050 F and 1051B respectively, “society is not all of one mind” and on which indeed “society as a whole is substantially divided”.’
Munby J. continues,
‘Our society including the most thoughtful and concerned sections of our society, are deeply troubled and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold passionately and with the utmost sincerity, starkly differing views.’
and concludes,
‘All of those views are entitled to the greatest respect but it is not for a judge to choose between them.’
Mr Justice McGovern adopts this analysis as applicable to R v. R:
'I adopt those words as being relevant and applicable to the facts and issues in this case.'
So where technical experts differ it is outside the competence and the remit of judges in courts of law to settle such disputed matters by coming down on one side or another.
And where individuals and groups in society differ about the most fundamental ethical and religious matters, such as what constitutes a human being, when human life begins and what protection ought to be given to human life in certain circumstances, these issues also fall outside the competence or remit of judges in courts of law, and they should not act so as to settle them by coming down on one side or another.
In a democracy, then, judges in courts of law should refer such issues back to the legislature which should enact laws in relation to disputed issues. Then judges in courts of law should decide disputed questions by applying these laws.
Such judicial self-restraint is right in principle and would be admirable if carried through in practice.
Next week Part 3: The Doctrine of Prevailing Ideas
Thursday, February 25, 2010
Thursday, February 18, 2010
Part 1: The Issues in R v. R
The Weekend Post
The first posts will take a critical look at the R v. R judgments
The High Court Judgment in R v. R
Part 1: The issues in R v. R
R v. R is a case taken by Mrs Roche against her husband, Mr Roche, and against the Sims IVF Clinic. The case was listed as M. R., Plaintiff, v. T. R., Anthony Walsh, David Walsh, and Sims Clinic Limited, Defendants, and the Attorney General, Notice Party.
The judgment is posted at http://www.courts.ie/judgments.nsf/bce24a8184816f1580256ef30048ca50/e5617d292b7b6b268025724800329992?OpenDocument, (accessed 12th December 2009). Passages from the judgment are cited by the page number as printed off from this site.
Mr and Mrs Roche are separated. While they were still together, with his agreement she underwent IVF at the Sims Clinic and six embryos were generated; three were implanted, following which she gave birth to a child, and the other three were frozen and are stored in cryopreservation an IVF clinic.
After the spouses separated Mrs Roche sought to have the three frozen embryos released to her by Mr Roche and the Sims Clinic so that she might seek to have them transferred into her body in an attempt to become pregnant again, but her husband refused to allow the release of the frozen embryos from the Clinic.
He was opposed to them being transferred into her. He did not want her to become pregnant with another of their children. He had entered another relationship.
The Sims Clinic refused to release the frozen embryos to Mrs Roche because Mr Roche was not in agreement with her intention to become pregnant again in an attempt to have another child.
A number of legal issues needed to be addressed by the Court in the case.
Were the three frozen embryos represented in Court?
The three Roche embryos at the centre of R v. R were not represented in Court.
The Attorney General represented the State, not the three frozen embryos, and although a Notice Party, called witnesses and make statements and arguments. The State through the Attorney General did not make arrangements for the Roche embryos to be represented in Court independently of Mr and Mrs Roche.
The State through the Attorney General’s Counsel argued that human embryos in vitro should not be included among ‘the unborn’ with a right to life equal to that of their mother as acknowledged and protected under Article 40.3.3.
Article 40.3.3 says that the State acknowledges and guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate. Despite the imperative contained in the strong term ‘guarantees’, the three frozen embryos were un-represented in Court in a case that hinged on interpretation of the term ‘the unborn’ in the Constitution.
In response to the argument put forward by the Counsel for the Attorney General representing the State, that human embryos should not be counted among ‘the unborn’ whose right to life is acknowledged by the State in Article 40.3.3 and guaranteed to be protected by its laws, and should be allowed to be destroyed, Mr Justice McGovern asked Counsel to clarify what respect if any was due to the embryo in vitro. Counsel for the Attorney General representing the State said that human embryos in vitro were entitled to some respect as human material or tissue. But how much respect? There was no reply, so Mr Justice McGovern prompted him, ‘As much as nail clippings?’ There was no reply from Counsel for the Attorney General representing the State, on behalf of the people.
Silence signifies consent?
Decisions at a preliminary hearing on 18th July 2006
The husband and wife signed a number of documents drawn up and provided by the IVF clinic.
One of the issues considered by the Court was what exactly they and the clinic had agreed to by signing these documents, and the extent to which the wife, her husband and the clinic continue to be bound by them.
Another issue was whether the husband was entitled to prevent the release of the frozen embryos to his wife, or whether she was entitled to obtain them from the clinic notwithstanding his refusal to consent to this or to his wife seeking to have them implanted in her so that she might attempt to become pregnant again.
Mr Justice Brian McGovern notes that in a preliminary hearing (18th July 2006) he had held that ‘there was no agreement’ between Mr and Mrs Roche ‘as to what would happen the frozen embryos’ in the event that the three that were implanted in her resulted in a birth (p. 3). He also held that the husband ‘did not give his express or implied consent to the implantation of the frozen embryos in the plaintiff’s uterus (p. 3, 4).
Next Week
Part 2: Where scientific experts differ, it’s not for a judge to decide between them
.
The first posts will take a critical look at the R v. R judgments
The High Court Judgment in R v. R
Part 1: The issues in R v. R
R v. R is a case taken by Mrs Roche against her husband, Mr Roche, and against the Sims IVF Clinic. The case was listed as M. R., Plaintiff, v. T. R., Anthony Walsh, David Walsh, and Sims Clinic Limited, Defendants, and the Attorney General, Notice Party.
The judgment is posted at http://www.courts.ie/judgments.nsf/bce24a8184816f1580256ef30048ca50/e5617d292b7b6b268025724800329992?OpenDocument, (accessed 12th December 2009). Passages from the judgment are cited by the page number as printed off from this site.
Mr and Mrs Roche are separated. While they were still together, with his agreement she underwent IVF at the Sims Clinic and six embryos were generated; three were implanted, following which she gave birth to a child, and the other three were frozen and are stored in cryopreservation an IVF clinic.
After the spouses separated Mrs Roche sought to have the three frozen embryos released to her by Mr Roche and the Sims Clinic so that she might seek to have them transferred into her body in an attempt to become pregnant again, but her husband refused to allow the release of the frozen embryos from the Clinic.
He was opposed to them being transferred into her. He did not want her to become pregnant with another of their children. He had entered another relationship.
The Sims Clinic refused to release the frozen embryos to Mrs Roche because Mr Roche was not in agreement with her intention to become pregnant again in an attempt to have another child.
A number of legal issues needed to be addressed by the Court in the case.
- What were the rights of the three Roche embryos kept frozen in storage in the Sims Clinic?
- What were the rights of Mrs Roche in relation to their three embryos?
- What were the rights of Mr Roche in relation to their embryos?
- What were the duties of the Sims Clinic in relation to the three Roche embryos they were holding in cryopreservation?
- Was Mrs Roche legally entitled to have their three frozen embryos released to her by the Sims Clinic even though her husband does not want this to happen?
- Was Mrs Roche legally entitled to have their three embryos transferred into her so that she might have an opportunity to become pregnant and give birth?
- Was Mr Roche entitled to prevent the release of their embryos to her and their transfer into her?
- Mr and Mrs Roche had contracted to pay for the cryopreservation of their embryos in the Sims Clinic but had ceased making the agreed payments. Was the Sims Clinic entitled to discontinue cryopreservation storage of the embryos, in the clear and certain knowledge that this would bring about the loss of their lives?
- Mr and Mrs Roche signed Forms provided by the Sims Clinic. Did their signing of these Forms mean they had entered into any contracts that would help resolve these questions?
- In particular, had Mr and Mrs Roche agreed that their frozen embryos would be transferred into Mrs Roche?
- And whether they had or had not entered such an agreement, was Mrs Roche entitled to have their embryos transferred into her by virtue of Article 40.3.3, Article 41, or otherwise?
- And if they had, did that agreement stand as they had since separated?
- Again, if they had so agreed, was Mr Roche entitled to withdraw that consent because the marriage had broken down?
- Or again, if they had so agreed, was Mr Roche entitled by any constitutional right to determine how their embryos might be ‘used, stored, maintained or kept’. (p. 4)
- And most importantly, were their frozen embryos ‘unborn’ for the purposes of Article 40.3.3 of the Irish Constitution? In other words did they have a right to life acknowledged by the State which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate?
Were the three frozen embryos represented in Court?
The three Roche embryos at the centre of R v. R were not represented in Court.
The Attorney General represented the State, not the three frozen embryos, and although a Notice Party, called witnesses and make statements and arguments. The State through the Attorney General did not make arrangements for the Roche embryos to be represented in Court independently of Mr and Mrs Roche.
The State through the Attorney General’s Counsel argued that human embryos in vitro should not be included among ‘the unborn’ with a right to life equal to that of their mother as acknowledged and protected under Article 40.3.3.
Article 40.3.3 says that the State acknowledges and guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate. Despite the imperative contained in the strong term ‘guarantees’, the three frozen embryos were un-represented in Court in a case that hinged on interpretation of the term ‘the unborn’ in the Constitution.
In response to the argument put forward by the Counsel for the Attorney General representing the State, that human embryos should not be counted among ‘the unborn’ whose right to life is acknowledged by the State in Article 40.3.3 and guaranteed to be protected by its laws, and should be allowed to be destroyed, Mr Justice McGovern asked Counsel to clarify what respect if any was due to the embryo in vitro. Counsel for the Attorney General representing the State said that human embryos in vitro were entitled to some respect as human material or tissue. But how much respect? There was no reply, so Mr Justice McGovern prompted him, ‘As much as nail clippings?’ There was no reply from Counsel for the Attorney General representing the State, on behalf of the people.
Silence signifies consent?
Decisions at a preliminary hearing on 18th July 2006
The husband and wife signed a number of documents drawn up and provided by the IVF clinic.
One of the issues considered by the Court was what exactly they and the clinic had agreed to by signing these documents, and the extent to which the wife, her husband and the clinic continue to be bound by them.
Another issue was whether the husband was entitled to prevent the release of the frozen embryos to his wife, or whether she was entitled to obtain them from the clinic notwithstanding his refusal to consent to this or to his wife seeking to have them implanted in her so that she might attempt to become pregnant again.
Mr Justice Brian McGovern notes that in a preliminary hearing (18th July 2006) he had held that ‘there was no agreement’ between Mr and Mrs Roche ‘as to what would happen the frozen embryos’ in the event that the three that were implanted in her resulted in a birth (p. 3). He also held that the husband ‘did not give his express or implied consent to the implantation of the frozen embryos in the plaintiff’s uterus (p. 3, 4).
Next Week
Part 2: Where scientific experts differ, it’s not for a judge to decide between them
.
Subscribe to:
Posts (Atom)