The European Court of Human Rights in Strasbourg has found that a woman has no right to use her frozen embryos if their partner withdraws their consent to their use; even when the embryos were frozen as a result of serious pre-cancerous treatment that has left the woman without any other way to bear children.

The background
On 10 October 2000 Ms Evans and her partner, J, were informed that Ms Evans had serious pre-cancerous tumours in both ovaries. Ms Evans then had eleven ova harvested and fertilised; six embryos were created and stored. In May 2002 the relationship between Ms Evans and J broke down and J wrote a letter to the fertility clinic to inform it that the embryos should be destroyed as he withdrew his consent to their continued storage. The clinic then wrote to Ms Evans informing her that it was now under a legal obligation to destroy the embryos, pursuant to the Human Fertilisation and Embryology Act 1990 ('the 1990 Act').

Court Proceedings

Following unsuccessful applications and appeals through the English High Court and Court of Appeal, Ms Evans brought her complaint to the European Court of Human Rights ('the Court'), arguing that the application of the 1990 Act in her circumstances had violated the European Convention on Human Rights (the 'ECHR') by breaching: (i) the embryos' right to life (Article 2); (ii) her right to protection of her private and family life (Article 8); and (iii) her right to protection from discrimination (Article 14). The Court rejected all of Ms Evans's arguments, and the questions were referred to the grand chamber of the Court, composed of 17 judges.

Review of domestic legislation

In this case, the Court demonstrated that it is prepared to study closely the compatibility of domestic legislation with the ECHR. Although the Court did not find the 1990 Act to be incompatible with the ECHR, it did conduct a detailed analysis of the relevant parts of the legislation, noting that strong policy considerations underlay the decision of the UK parliament to favour a clear rule – the "bright-line rule" – which would serve both to produce legal certainty and to maintain public confidence in the law in what is a highly-sensitive field. Ultimately, the Court allowed the UK a wide degree of discretion – the "margin of appreciation" – to have legislation which, while interfering with individuals' private rights, does so in order to protect the fundamental rights of other individuals.

Interestingly, there are two dissenting opinions in this case; the dissenters stating their view that the application of the 1990 Act in the present case was disproportionate and that, because of its absolute nature, the legislation prevents the balancing of competing interests in this particular case. They conclude their dissention by indicating that since the issue at stake in cases such as this is fundamental – much more so than a mere contractual dispute – the intervention of the Court into questions of compatibility of domestic legislation could be entirely appropriate.

Rights to life and privacy

The Court followed the domestic courts in finding that the Article 2 right to life was simply not engaged in this case given the well-established case law on the status of embryos. On questions of private and family life, the Court gave J's right to withdraw his consent a 'presumptive value' meaning that his right to protection of his private and family life under the ECHR could trump considerations of Ms Evans's right to preserve the embryos. The Court stresses an individual's right to procreate, but also found that the ECHR could not allow the imposition of an obligation on someone to father or mother a child after he or she has withdrawn consent to the use of embryos.

Conclusion

So, in the battle between the right to procreation (Ms Evans's argument for using the stored embryos) and the right to private and family life (J's withdrawal of consent and subsequent request to destroy the embryos), it is the Article 8 right to private and family life that wins the day. Strasbourg is prepared to look seriously at domestic legislation if it infringes any ECHR rights, but it will not necessarily find such legislation incompatible if its intention is to protect such fundamental rights.