1. Roche v. Roche & Ors [2009] IESC 82 (hereafter Roche) was the Supreme Court appeal case. The first High Court judgment was R v. R & Ors [2006] IEHC 221 (hereafter R) and the second High Court judgment was MR v. TR & Ors [2006] IEHC 359 (hereafter MR).

2. Article 40.3.3 of the Irish Constitution.

3. See the recent decision in A, B and C v Ireland [2010] ECHR 2032.

4. There is no specific policy on assisted reproduction, although this was the subject of a government-appointed commission that published policy recommendations in 2005, a year before the MR v TR case came before the High Court. See the discussion of the regulative context, including the medical guidelines and the recommendations of the Commission on Assisted Human Reproduction in the section: Lack of Regulation in Ireland.

5. As per Hardiman J. in Roche; see note 1.

6. This is one of nine fertility treatment centers operational in the Republic of Ireland. None of these centers have any specific regulation. Fertility clinics are regulated by the EU Tissue and Cells Directive and Irish Medical Council Guidelines.

7. See note 1, R.

8. See note 1, R.

9. In his judgment on several occasions McGovern J. quotes Munby J. in The Queen on the application of Smeaton v. Secretary of State for Health [2002] 2 FLR 146 with approval.

10. Brazier, M. Hard cases make bad law? Journal of Medical Ethics 1997;23:341–3 at p. 341.CrossRefGoogle ScholarPubMed

11. It is worth noting that the relationship between natural law and the constitution when the two conflict has been considered in Re Article 26 and the Regulation of Information (Services Outside of the State Termination of Pregnancies Bill, 1995 [1995] 3 IR 62 at 81. In this case it was decided that in cases of conflict natural law could not be understood as being superior to constitutional law; see the critique of this decision by Whyte GF. Natural Law and the Constitution. Irish Law Times 1996; Jan:8-12. For a discussion of natural law and Roche, see Binchy, W. Article 40.3.30 of the Constitution: Respecting the Dignity and Equal Worth of Human Beings. In: Schweppe, J, ed. The Unborn Child, Article 40.3.3° and Abortion in Ireland: Twenty Five Years of Protection? Dublin: Liffey Press; 2008.Google Scholar For a more general account of the contested place of natural law in the Irish Constitution, see Lewis, VB. Natural law in Irish constitutional jurisprudence. Catholic Social Science Review 1997;2:171–82 at p. 173.CrossRefGoogle Scholar

12. Offences against the Person Act 1861, ss 58 and 59 of which made abortion a criminal offense carrying a maximum sentence of life in prison (for both the woman and anyone who helps to procure the abortion). The provisions of this Act are affirmed in the Health (Family Planning) Act 1979.

13. Hogan, G. Legal aspects of church/state relations in Ireland. St. Louis University Public Law Review 1988;7:275–86 at pp. 285–6.Google Scholar

14. Attorney General v. X. [1992] 1 I.R. 1.

15. For an interesting discussion of this case, see Fox, M, Murphy, T. Irish abortion: Seeking refuge in a jurisprudence of doubt and delegation. Journal of Law and Society 1992;19:454–66.CrossRefGoogle Scholar

16. See note 13, as per Hederman J. at 121.

17. See note 13.

18. McGovern J. gained further support for this proposition from Baby O. v. The Minister for Justice. The following statements were made in the judgment of that case: “[A]s explained by the judgments of the majority in this Court in Attorney General v. X. [1992] 1 I.R. 1, [Article 40.3.3] was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.” “The enactment of Article 40, s.3, sub-s.3, in 1983 did not I believe bring about any fundamental change in our law. Already, s.58 of the Offences Against the Person Act, 1861, made it an offence unlawfully to bring about the miscarriage of a woman.”

19. It is worth pointing out that 40.3.3 was introduced in 1983. Assisted reproductive technologies have been available in Ireland since the 1980s, and it was in 1987 that the first “test tube” baby was born.

20. Whyte G. High Court had to determine what word unborn meant. The Irish Times 2006 Dec 16; An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Tuarascáil (Atógáil). Eighth Amendment of the Constitution Bill, 1982: Report Stage; available at http://www.oireachtas-debates.gov.ie/S/0100/S.0100.198305250006.html (last accessed 16 Nov 2010). The inclusion of the following words “which shall not include the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus” in the eighth amendment was defeated by 18 votes to 10.

21. The wording of the proposed amendment was as follows: “It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.” This would have had the effect of further restricting women’s ability to obtain a legal abortion in the state. See Weinstein, J. “An Irish Solution to an Irish Problem”: Ireland’s struggle with abortion law. Arizona Journal of International and Comparative Law 1993;10:165–200.Google Scholar

22. Casey, G. Born Alive: The Legal Status of the Unborn Child in England and the U.S.A. Chichester: Barry Rose; 2005:40.Google Scholar

23. Report of The Commission on Assisted Human Reproduction. Dublin: Department of Health and Children; 2005.Google Scholar

24. See note 22, Report 2005.

25. Medical Council. Guide to Ethical Conduct and Behaviour, 4th ed.Dublin: Medical Council; 2004.Google Scholar

26. Medical Council. Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 7th ed.Dublin: Medical Council; 2009.Google Scholar

27. Ethical, Scientific and Legal Issues Concerning Stem Cell Research. Opinion. Dublin: The Irish Council for Bioethics; 2008:41.Google Scholar

28. Similar criticism in relation to abortion regulation was raised by McCarthy J. in the X case: “[T]he failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are doctors to do?” as quoted in Fox and Murphy, see note 14, 1992:455.

29. See note 1, MR. See also Roe v. Wade, 410 U.S. 113, 159 (1973): “We need not resolve the difficult question of when life begins. When those trained in the respectable disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate of man’s knowledge, is not in a position to speculate as to the answer.”

30. Issues of constitutional interpretation and the standards the Courts used for deciding the original intention of Article 40.3.3 are worthy of a whole paper in themselves. We acknowledge that the courts use a number of principles of interpretation including “the mind of the people,” natural law, and parliamentary intention. However, we cannot for reasons of space and focus discuss the use of these principles with any critical depth here.

31. See note 1, Roche as per Murray CJ.

32. See Gough, F. Ireland and the frozen embryo: A slight thawing? Medical Law Review 2010;18:239–47.CrossRefGoogle ScholarPubMed

33. See note 13, as per McCarthy CJ.

34. See note 1, Roche as per Fennelly J.

35. See, for example, the Irish Council for Civil Liberties policy document on abortion legislation, The Need for Abortion Law Reform in Ireland: The Case Against the Twenty-Fifth Amendment of the Constitution Bill, 2001. Dublin: ICCL; 2002:¶21.Google Scholar

36. Regarding the ambiguity of Article 40.3.3, see All-Party Oireachtas Committee on the Constitution. Report of the Constitution Review Group. Dublin: Stationery Office; 1996. See also All-Party Oireachtas Committee on the Constitution. Fifth Progress Report: Abortion. Dublin: Stationery Office; 2000; both available at http://www.constitution.ie/publications/default.asp?UserLang=EN. (last accessed 30 Oct 2010). On AHR, see the above-mentioned CAHR Report, note 26, CAHR 2005.

37. See note 1, R as per McGovern J.

38. Civil Liability Act 1961, s.58.

39. See note 1, Roche as per Denham J. at 59 & 65.

40. This echoes the views of the Warnock Report, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd.9314) London: HMSO; 1984.Google Scholar

41. See note 1, Roche as per Murray CJ.

42. Bortolotti, L. Disputes over moral status: Philosophy and science in the future of bioethics. Health Care Analysis 2007;15:153–8.CrossRefGoogle ScholarPubMed

43. Ruling on Frozen Embryos. The Irish Times 2006 Nov 20.Google Scholar

44. See note 42, Ruling 2006.

45. Szawarski, Z. Talking about embryos. In: Evans, D, ed. Conceiving the Embryo: Ethics, Law, and Practice in Human Embryology. The Hague: Nijhoff; 1996:119–23.Google Scholar

46. We have not the space to fully explore the importance of potentiality in relation to capacity and Article 40.3.3 here. The type of potentiality discussed here is called “natural potentiality.” DeGrazia describes it as follows: “Natural potentiality is understood as the potential encoded in, and expressive of, one’s nature or kind. It is contrasted with extrinsic potential such as my potential to be Governor of Maryland or a rock’s potential to be a paperweight.” See DeGrazia, D. Must we have full moral status throughout our existence: A response to Alfonso Gómez-Lobo. Kennedy Institute of Ethics Journal 2007;17(4):297–310 at p. 303.CrossRefGoogle Scholar

47. Warren, MA. Moral Status: Obligations to Persons and Other Living Things. Oxford: Oxford University Press; 1997:13–4.Google Scholar

48. See note 41, Bortolotti 2007.

49. This point has been made in policy documents on AHR elsewhere; for example, in the Warnock Report it was stated: “Although the questions of when life or personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgements”; see note 37, Warnock Report, 1984:60.

50. Berg, J. Of elephants and embryos: A proposed framework for legal personhood. Hastings Law Journal 2007;59:369–406.Google Scholar

51. Finnis, J. The priority of persons. In: Horder, J, ed. Oxford Essays in Jurisprudence. Oxford: Oxford University Press; 2000:8Google Scholar; see also Finnis, J. The Other F Word; 2010; available athttp://www.thepublicdiscourse.com/2010/10/1849 (last accessed 16 Nov 2010).Google Scholar

52. See note 50, Finnis 2008:10.

53. For a discussion of the problems of needing an account of moral status before legal protections can be decided on, see Alto, CR. The hunting of the snark: The moral status of embryos, right-to-lifers, and third world women. Stanford Law & Policy Review 1994;6(2):11–37.Google Scholar

54. We recognize that this connection to the “maternal organism” gives rise to the capacity to be born, but that in no way gives it the separate capacity to be born alive. Many thanks to Ruth Fletcher for drawing our attention to this distinction.