On 10 April 2007, the European Court of Human Rights (ECHR) ruled that Natallie Evans did not have the right to have a child using the frozen embryos that she had created with her expartner, against his will.1
This provoked far reaching debate on the issue of consent contained in schedules 3 and 4 of the Human Fertilisation and Embryology Act 1990 (HFEA 1990) which provide that, unless there is continuing bilateral consent from both ‘parents’ up until the embryo has been implanted, then it cannot be used.
The background to this decision is well documented. Because of cancer treatment, it was going to be necessary to remove Ms Evans’s ovaries. She and her partner, Mr Johnston, therefore underwent IVF treatment in 2001 before she had her ovaries removed, producing several embryos. When their relationship ended in 2002, Mr Johnston withdrew his consent for the embryos to be used.
Under the five year rule governing the storage of embryos, Mr Johnston’s decision meant that the embryos would have to be destroyed. Ms Evans unsuccessfully sought an injunction in the High Court, Court of Appeal and Chamber of the ECHR. Ms Evans also sought a declaration of incompatibility under the Human Rights Act 1998 that schedule 3 breached her rights under Article 8 (the right to family life), Article 14 (prohibition of discrimination), and the embryo’s right to life under Article 2. Potentially this case stood to have a major impact on fertility law.
The dilemma central to the case was that it involved a conflict between the rights of two individuals - the “right” of Ms Evans to be a genetic mother and the “right” of Mr Johnston not to father a child if he did not wish to do so.
The question was whether the principles of consent enshrined in the HFEA 1990 - compliance with which led to the alleged breach of Ms Evans’s rights, were “necessary” in a democratic society. This required a decision as to whether the loss or suffering caused to the individual can justifiably be balanced by (or is proportionate to) the benefit to society as a whole.
The applicant made two compelling arguments. First, it was discriminatory to allow the man to withdraw his consent later on in the process; this would not be possible with natural conception, for a woman with intact ovaries, once fertilisation had taken place.
Secondly, she contended that her greater physical and emotional expenditure during the IVF process and her subsequent infertility gave her Article 8 rights precedence over the man’s. She had undergone the risky and painful process of ovarian stimulation and egg extraction. She had much more to lose. Even if she was still capable of undergoing further IVF, to create “replacement” embryos would inevitably be more painful and risky to her than the donation of sperm. She was assisted here with a decision in the Supreme Court of Tennessee, which ruled that, in such circumstances, withdrawal of consent should not be permitted.2 Also in the Israeli case of Nachmani3, involving a surrogate mother, the ECHR found that the woman’s interests outweighed those of the man.
The ECHR’s decision
The ECHR held that the embryo did not have a right to life within the meaning of Article 2. The ECHR confirmed that, in the absence of any European consensus on the definition of the beginning of life, member state law applies. Under English law, an embryo does not have independent rights or interests.
In respect of the discrimination issue, the ECHR considered that the fact that it had become technically possible to keep human embryos in frozen storage gave rise to an essential difference between IVF and fertilisation through sexual intercourse. With IVF, it is possible to allow a lapse of time, which might be substantial, to intervene between the creation of the embryo and its implantation in the uterus. It considered it legitimate and desirable for the law enshrined in the HFEA to take that possibility of delay into account.
Dealing with the issue of consent, the ECHR noted that, whereas in Denmark, France, Greece, the Netherlands and Switzerland, the right of either party freely to withdraw their consent “at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in the primary legislation”, there is no such provision in the UK. Neither was there any consensus that Ms Evans’s rights under Article 8 should take precedence over those of Mr Johnston because of her greater physical and emotional expenditure during the IVF process.
The ECHR considered that rules were necessary to promote legal certainty and to avoid problems with arbitrariness and inconsistency. For instance, imagine the moral outcry if a woman no longer wanted to store her and her ex-partner’s embryos and the man tried to use a surrogate woman to carry one. The ECHR held that if withdrawal of a man’s consent was not conclusive, then clinics would be required to make individual judgment decisions on a case-by-case basis “which could create new and even more intractable difficulties of arbitrariness and inconsistency”.
As there was no international consensus, the ECHR held that decisions about the “principles and policies to be applied in this sensitive field must primarily be for each state to determine”. By conceding a margin of appreciation to each national system, the Court recognised that the 1990 Act
“... was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology and the fruit of much reflection, consultation and debate”.
The ECHR held that since Ms Evans’s claim under Article 8 failed, so did her claim under Article 14.
Some may see this case as a classic example of current law limping behind the ever-changing field of medical advancement and IVF in particular. Others may recognise the perennial difficulty in balancing conflicting rights - in this case of two individuals; in others involving sections of society.
The likelihood is that this will not be a unique case. It must therefore be time for a review of the law and of IVF procedures to avoid any kind of repetition.
A possible statutory change is to amend the HFEA on the issue of consent by limiting the withdrawal of consent until the creation of the embryo. This would result in better clarity in the law and for couples.
For IVF procedures, one solution for the future would be an increase in the practice of freezing and storing eggs. This would mean that women could bank their eggs before cancer treatment in the same way that men are able to bank their sperm and would avoid the need to create embryos at that time. The results of egg freezing do not yet match the success of frozen embryos and so women will need to consider the risks involved in both strategies. With constant improvement and scientific development, however, egg freezing might well be the answer.
Whatever the law and the practice, it is essential that men and women are given full and clear information on every aspect of their treatment.