THE SUPREME Court has ordered the Attorney General to pay most of the legal costs, estimated at more than €2.5 million, of the estranged couple who disagreed over the fate of three embryos in frozen storage in a Dublin fertility clinic since 2002.
The clinic’s undertaking to continue storing the embryos automatically lapses now that the case has concluded.
The costs ruling follows the unanimous Supreme Court decision last December dismissing the appeal by Mary Roche against the High Court’s refusal to order the SIMS fertility clinic in Rathgar to release the embryos to her.
The Supreme Court ruled the embryos are not the “unborn” within the meaning of Article 40.3.3 of the Constitution (the anti-abortion amendment of 1983), which requires the State to respect and vindicate the right to life of the unborn with due regard to the equal right to life of the mother.
The word “unborn” refers to a child within the womb, not pre-implantation embryos, and State protection of embryos arises only after implantation, the court found. It stressed pre-implantation embryos deserve “respect” and it was not addressing issues as to when human life begins.
The Chief Justice, Mr Justice John Murray, ruled yesterday both Mary and Thomas Roche are entitled to their High Court costs against the AG because of the “exceptional importance” of the public policy and constitutional issues which arose in “the unique context of the constitutional protection which might be afforded to frozen embryos”.
While both Mr and Ms Roche had a personal interest in the issues, those issues surpassed “to an exceptional degree” their private interests and, in those circumstances, the court would depart from the normal rule for costs to go to the winning party.
The greater burden of costs was incurred in the High Court, as the parties had to tender extensive expert evidence there on the issues that arose, he noted.
The Chief Justice added the Supreme Court did not consider the AG should bear the costs of the entire proceedings, so it would make no order for costs against him in the Supreme Court appeal. Given the special circumstances of the case and the matrimonial relationship between the Roches, the court did not believe Ms Roche should be required to pay the appeal costs of Mr Roche.
He said the court would therefore make no order for costs of the Supreme Court appeal, meaning the parties pay their own costs of that appeal.
The costs ruling marks the end of the legal action by Mary Roche aimed at having the embryos implanted in her womb, against the wishes of her estranged husband. The conclusion means the clinic’s undertaking to retain the embryos in frozen storage lapses.
No reference was made to that undertaking by any of the sides yesterday, but it is believed an agreement may have been reached as to what will happen to the embryos. Lawyers for Ms Roche told the court last January she intended to liaise with the clinic about what would happen to the embryos.
Giving the costs ruling, the Chief Justice said the very existence of the frozen embryos and the fact there was a real issue as to the constitutional protection they might be afforded under Article 40.3.3 meant, independent of the wishes of the Roches, it was inevitable the courts would have to address those issues.
There was no doubt the issues touched on “a subject matter of singular public importance”, including profound and complex questions of constitutional law on novel aspects of the right to life and reproductive rights stemming from modern developments in bio-medicine which permit a frozen embryo to exist outside the womb.
The Supreme Court had acknowledged the “moral status” of the embryo and the point or circumstances in which the constitutional protection for the life of the unborn has legal effect.
The case centred on the fate of three of several embryos created after fertility treatment undertaken by Ms Roche, now aged 43, and her husband in early 2002. The couple had one child in 1997 conceived naturally, while a second was born in October 2002 as a result of the treatment. They separated at about that time.
