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

The Weekend Post
Friday 12th March 2010

Protecting Human Embryos in Clinics and Laboratories

The High Court Judgment in R v. R

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



Mr Justice McGovern says the doctrine of prevailing ideas does not enable mean human embryos in vitro may be included among ‘the unborn’ whose right to life is acknowledged and protected under Article 40.3.3

Mr Justice McGovern, decides that the views of O’Higgins C.J. and Walsh J. he has cited, which ‘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’, 'are not, in my view, authority for the proposition that the word “unborn” in Article 40.3.3 should be given a different meaning to that which was understood by the people at the time when they approved the amendment, if it can be ascertained, from the historical context, what the word was understood to mean.'

In the argument that follows Mr Justice McGovern comes to a view about the meaning of the term ‘the unborn’ in the Constitution. And he does so on the basis of remarks and strands of reasoning drawn from Irish cases about aspects of the Irish law on abortion which were heard after the enactment of Amendment inserted as Article 40.3.3 in 1983, and a discussion of some of these remarks and strands of reasoning by a judge in a case in another jurisdiction.

The cases cited by Mr Justice McGovern in constructing his argument that ‘the unborn’ does not include embryos in vitro

Mr Justice McGovern cites the following cases in the course of building the argument on the basis of which he concludes that ‘the unborn’ in Article 40.3.3 does not include human embryos in vitro:

He first cites a piece of legislation from before the enactment of Article 40.3.3, the Civil Liability Act 1961, but he judges it to be of little help to him: ‘Suffice it to say that the word “unborn” as set out in the Civil Liability Act does not offer much assistance to my determination of the issues in this case.’

He next cites the Sixth Edition of the Medical Council’s Guide to Ethical Conduct published in 2004.

en he cites The Attorney General (S.P.U.C.) v. Open Door Counselling Limited [1988] which in turn refers back to remarks of Walsh J. in G v. An Bord Uchtála [1980]

And that brings him back to the case heard in England already discussed above, The Queen on the application of Smeaton v. Secretary of State for Health [2002] on which his argument and conclusion ultimately rest.

The judge in that English case, Munby J., case took issue with the reasoning of Hamilton P. in The Attorney General (S.P.U.C.) v. Open Door Counselling Limited [1988], and reasoning of Munby J. is the basis of Mr Justice McGovern’s conclusion that the term ‘the unborn’ does not include human embryos in vitro.

He goes on to cite The Attorney General v. X [1992] and Baby O. v. The Minister for Justice [2002]

After this, he quotes the recommendation of the Report of the Commission on Assisted Human Reproduction published in 2005, that ‘the embryo formed by IVF should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed in vivo.’

What Mr Justice McGovern does with the citations from these cases is to argue that because they confirm the applicability of Article 40.3.3 to cases involving abortion it somehow follows that the right to life of the unborn can only legitimately be construed as applying to human embryos in vivo, and cannot legitimately be construed as applying to human embryos in vitro.

It is true that part of the intention of the people in voting in the amendment was to prevent abortion. But it does not follow from this that the people did not also intend more than that in voting in the amendment.

In the words of the Chief Justice, Mr Justice Murray, in his judgment in R v. R, ‘If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily and easily by the adoption of legislation. But the public debate transcended that and the object was, as the result demonstrates, to place in the Constitution a protection for human life before birth.’ The Chief Justice continues, ‘ In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the issues were addressed at constitutional level.’

The debate is not one lost in the mists of time, but fairly recent, and what happened was that initial formulations of possible amendment wordings focused on articulating a right to life of the child before birth from the start of its life, and as the debate progressed, the proponents of such a wording had to accommodate legitimate concerns about safeguarding the right to life of the mother in a situation of difficult pregnancy and this was done by the balancing of the equal right to life of mother and child.

So the actual historical context was a demand for a constitutional recognition and protection of the right to life of the child before birth was the motivating and engendering concern and the balancing of this against the equal right to life of the mother was articulated not to deny the right to life of human embryos in vitro. Furthermore, the birth of Louise Brown, the first baby generated by IVF, was dramatic world news in July 1978, only a few years before the debate on the wording of the amendment.

The word ‘abortion’ does not appear in Article 40.3.3, so the argument seeking to restrict its remit to that of protecting the child in the mother against abortion is not only not compelling, it is not even persuasive. To a legal outsider like myself the argumentation feels intellectually tortuous, strained out of the natural shape of reason required by the issue at hand as if by a will not to allow the Article 40.3.3’s acknowledgement and protection of right to life of the unborn include human embryos in vitro.

The more general, not exclusively anti-abortion language of the Article 40.3.3 expresses the intent of the people that protection against more than abortion was envisaged. The use of the word ‘only’ in the following passage from the Supreme Court judgement of Mr Justice Fennelly in R v. R seems to support this interpretation:

'I do not think that the constitutional provision should be considered only as being intended to reinforce the effect of Section 58 of the Offences against the Person Act, 1861. The people, in adopting the Eighth Amendment to the Constitution employed distinct, new and independent language' (Par. 2)

Next Week


Part 6: How Mr Justice McGovern constructs his argument that human embryos in vitro are not ‘unborn’