Part 3: The Doctrine of Prevailing Ideas

The Weekend Post
Friday 5th March 2010


Protecting Human Embryos in Clinics and Laboratories

The High Court Judgment in R v. R




Part 3: The Doctrine of Prevailing Ideas

How Mr Justice McGovern approaches the question whether the frozen embryos are ‘unborn’ under Article 40.3.3

Mr Justice McGovern turns now to the main issue he has to address, ‘whether the three frozen embryos at issue in this case constitute the ‘unborn’ for the purposes of Article 40.3.3 of the Constitution.’

He notes that the Constitution does not define ‘the unborn’ and quotes the Report of the Constitution Review Group, issued in July 1996: 'Definition is needed as to when the ‘unborn' acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins, but the law must define what it intends to protect.'

He says that he has to decide what ‘the unborn’ means in Article 40.3.3 and that, in the absence of a definition, ‘one can look at the history or background to the Amendment of the Constitution which resulted in Article 40.3.3 being adopted by the people.’


The Doctrine of Prevailing Ideas: with advances in knowledge, rights hitherto not acknowledged may now be accepted as firmly established under the Constitution

He then quotes remarks of O’Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 325, at 347, that the preamble to the Irish Constitution

'Makes it clear that the rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a constitution which can absorb or be adapted to such change in other words the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.'

Mr Justice McGovern notes that O’Higgins C.J. went on to quote Walsh J. in McGee v. The Attorney General [1974] I.R. 284 at 319:

'According to the preamble, the people gave themselves a Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.'

Mr Justice McGovern says that these views of O’Higgins C.J. and Walsh J. acknowledge that

'Changing values in society may mean that rights which were not acknowledged in the past may now be accepted as firmly established under the Constitution.'


The relevant new prevailing idea in R v R: human embryos in vitro are human beings at the embryonic stage of their lives

The advances that provide the foundation of such changes in interpretation of the Constitution are advances in knowledge and corresponding advances in the way the dignity and freedom of the human individual and a social order commensurate with that dignity and freedom have to be acknowledged and respected, and protected and vindicated in law.

After all, the two primary purposes of Ireland as a society, as set out in the Preamble to the Constitution, are ‘so that the dignity of the individual may be assured’ and ‘true social order attained’.

In the case of the three frozen human embryos at the centre of this case, they are clearly human, clearly alive, and clearly individual (referred to as three in number without equivocation throughout the High Court and Supreme Court decisions).

• There would have been no case if they were not human, say for example, yak embryos.
• There would have been no case if they were dead. The defendants and the State agreed with the plaintiff that they were being kept alive though frozen by the clinic.
• There would have been no case if they were merely frozen spermatozoa or oocytes because everyone knows these are not human beings.
• There would have been no case if everyone had not understood and accepted that the plaintiff and the first named defendant are the mother and the father respectively of the three frozen embryos.
• If they were implanted in the mother while she was pregnant they would fall under the protection of Article 40.3.3 ‘the unborn’. They would still be the same three living human individuals.

What science and technology have made possible now, that was not possible before, is for human beings to be generated apart from sexual union, either by bringing together the male and female gametes in vitro so they unite in fertilization, or otherwise beginning new human individuals, who are then able to be kept alive outside the mother.

The advance in knowledge consists in the range of different manners in which new individual human lives may be generated apart from sexual union, and kept alive apart from the natural process of development within the mother.

Each of these embryos is alive, is human, is an individual, and so, to apply the two criteria set out in the Preamble, the new questions now arise:

• How must society re-arrange itself and the laws so that the dignity and freedom of these new individuals is assured; 
• How must social order be re-arranged so that true social order is attained;
• In other words, how must all the individuals directly and indirectly involved with the coming into existence and remaining in existence of these new human individuals re-arrange their social relations so that the dignity and freedom of these new individuals is assured; 
• And how must the laws be altered to take account of these new relationships involving these utterly defenceless human lives and a range of adults at whose mercy is their very coming into existence and remaining in existence.

In accordance with the legal doctrine of 'prevailing ideas’, when new scientific advances bring about vulnerable new human individuals in new social relationships, then the Preamble criteria come into play and laws must be enacted so that the dignity and freedom of the vulnerable new individuals is assured and so that social relationships that are lethal or harmful to these vulnerable new individuals are replaced by social relationships in which their dignity and freedom are assured.

The obvious application of this principle to R v. R would have been as follows:

• That under Article 40.3.3, the State acknowledges a right to life of the unborn which it guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate;
• Once the unborn is in the mother, its right to life has to be considered together with the equal right to life of the mother; 
• But new situations have been opened up by contemporary science and technology where the unborn may exist in vitro, not implanted in a woman, whether in the course of Assisted Human Reproduction procedures or research involving human embryos, or stored frozen, usually indefinitely; 
• With these advances in knowledge, the right to life of these embryonic human beings living outside a woman’s body must acknowledged as firmly established under the Constitution; 
• And so the State acknowledges the right to life of embryonic human lives living outside a woman’s body, whether involved in the course of Assisted Human Reproduction procedures or in research involving human embryos, or frozen in storage under whatever circumstances, and guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right, as no balancing with equal right to life of the mother is involved or called for.

This would have been one way to develop the legal meaning of Article 40.3.3. After all, 40.3.3 was about 'the unborn' and the right to life of the unborn. It would have been a reasonable application of the doctrine of prevailing ideas because a set of new ways that human beings could be brought into existence had gradually been developed which involved them being alive outside and apart from their mothers' bodies, in clinics and laboratories.

And the obvious reasonable and responsible way to protect these vulnerable new human lives would have been to recognise that they too came under the protection of Article 40.3.3. They are human embryos just as those in a mother's womb are human embryos. In the case of IVF and similar techniques, the embryos that were in the clinic one week are in the mother's womb the following week. Or the IVF-generated embryos left in the clinic are the brothers and sisters of the IVF-generated embryos transferred into their mother And the IVF-generated embryos still left in the clinic are unborn, just as those transferred into the mother are.

But Mr J McGovern does not take that approach. Instead he sets about constructing an argument that because Article 40.3.3 says 'with due regard to the equal right to life of the mother', it somehow follows that the right to life of human embryos who are not in their mother but who are in clinics or laboratories are not included among 'the unborn' whose right to life is acknowledged by the State and to be defended and vindicated as far as practicable by the laws of the State.


Next Week

Part 4: How Mr J McGovern approaches the construction of his argument that ‘the unborn’ does not include human embryos in vitro