European court rules against Natallie Evans in frozen embryo case
Dr. Kirsty Horsey
Progress Educational Trust08 March 2006
The European Court of Human Rights (ECHR) has today issued its judgment in the case of Evans v the United Kingdom. Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, asked the court last September to rule whether UK law preventing her using stored frozen embryos, created using her former partner's sperm, violated her human rights under Articles 8 (right to respect for private and family life) and 14 (freedom from discrimination) of the European Convention on Human Rights. She also asked the ECHR to consider whether the embryos themselves had a right to life under Article 2.
Today, the ECHR unanimously ruled that there had been no violation of Article 2 concerning the actual embryos; unanimously that there had been no violation of Article 14 concerning the way Ms Evans was treated by the law; and, by five votes to two, that there had been no violation of Article 8. The ECHR found that the UK was not obliged to take positive legislative steps to ensure that a woman who begins IVF treatment in order to have a genetically-related child should be permitted to implant embryos after the withdrawal of consent by her former partner. It said that the UK's legislation had 'struck a fair balance' between the competing interests at stake, including those of the community as a whole, which is entitled to have laws giving 'certainty' in what is often a contentious area of medicine. It said that because there is little consensus across EU member states as to how this area should be regulated, the UK government enjoys a 'wide margin of appreciation' when deciding what its own laws should be. The court pointed out that having a clear or 'bright line' approach - that helps to create certainty and maintain public confidence in the law - is desirable. However, it did point out that this 'bright line' did not necessarily have to be drawn at the point of continued storage or use of frozen embryos, but could be drawn elsewhere, such as at the point of creation of the embryo. Or, said the court, it would be possible to legislate to say that such consent should become irrevocable - in any case, it said, 'a fairer balance' could arguably be struck.
The court went on to conclude that because there had been no violation of the right granted under article 8, it was unnecessary to consider whether - as a result of the breach of her Article 8 rights - she had in fact been discriminated against, contrary to Article 14.
Two of the seven judges - Judges Traja and Mijovic - dissented on the Article 8 point, saying that the majority decision 'gave excessive weight to public policy considerations and to the State's margin of appreciation without paying due attention to the nature of the individual rights in conflict'. They said that the right to IVF procreation had a 'higher ranking value' and therefore deserved 'a fairer balancing than that struck by the 1990 Act' and that the exceptional nature of Ms Evans' case - the fact it affects 'the very core' of her right - should have warranted a 'deeper consideration', as not to do so is 'unacceptable under the Convention'. In short, they argued that 'the dilemma between Natallie's right to have a child and her former partner's right not to become a father should not be resolved on the basis of such a rigid scheme and the blanket enforcement by the UK law of one party's withdrawal of consent'. They said that the withdrawal of one party's consent should generally be taken to prevail, except in situations where the other party has no other means to have a genetically-related child and has no existing children.
The embryos in question were created in 2001 using Ms Evans' own eggs and sperm from her then partner, Howard Johnston, who later withdrew his consent to their use. The UK's law, in the form of the Human Fertilisation and Embryology (HFE) Act 1990, requires continued consent from both parties in order for embryos to be used or remain in storage. A withdrawal of consent means that the embryos should be destroyed. The embryos represent Ms Evans' last chance to have her own biologically related child, as her ovaries were removed when they were found to be cancerous. It was at this point that she also agreed to store embryos created with her partner's sperm - rather than frezzing her eggs or using donor sperm to create embryos. At a hearing last year, permission was granted to keep the embryos in storage while the human rights case was heard and until an outcome was finalised, a legal process that normally takes several years. However, the ECHR expedited Ms Evans' claim because of the exceptional nature of the case.
The ECHR ended its judgment by saying that parties had the ability to ask that the case be heard by the Grand Chamber of the European Court of Human Rights. In a statement to the press, Muiris Lyons, the solicitor acting for Ms Evans, said that this, along with the fact that the five majority judges expressed their 'great sympathy for the plight of Natallie', and the strength of the dissenting judgment, had convinced her to request that the case be referred to the Grand Chamber. 'This will involve us applying on her behalf for the case to be referred', he said, adding 'her application will then be considered by a panel of 5 new judges who will decide whether or not to refer the case to the Grand Chamber. If Natallie is successful then her case will be considered by the Grand Chamber which consists of 17 judges'. In its ruling, the ECHR also reminded the UK Government that it must take appropriate measures to ensure that Natallie Evans' embryos are not destroyed until the judgment became final or pending any further order.
Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.