Dr. Kirsty Horsey
Progress Educational Trust
22 February 2005
 [BioNews, London]
Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, is taking her case to the European Court of Human Rights (ECHR). The embryos were created using her own eggs and sperm from her then partner, who later withdrew his consent to their use. The embryos represent her last chance to have her own biologically related child, as her ovaries were removed when they were found to be cancerous. In December last year, the House of Lords refused to allow her appeal, after both the UK's High Court and Court of Appeal had previously rejected her case. The Law Lords said that her case 'did not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the cause has already been the subject of judicial determination'.
The High Court decided in September 2003 that Ms Evans' embryos must be destroyed as, according to the Human Fertilisation and Embryology Act 1990 (HFE Act), they could not be used without the consent of both parties. Ms Evans appealed that decision on five grounds: first, that Howard Johnston, her former fiance, had consented to treatment together with her and intended for her to carry the embryos created with his sperm. Secondly, that the HFE Act is wrong, if it allows consent to be withdrawn after the embryos have been created. Thirdly, that in any event, it was too late for consent to be withdrawn as, technically, the embryos had already been 'used' as part of her treatment. Fourthly, she argued that she has a right to use the embryos as part of her human right to privacy and family life, guaranteed by Article 8 of the European Convention on Human Rights (ECHR). Lastly, she argued, the law, by granting a 'male veto' over the use of the embryos, discriminates against her in breach of Article 14 of the ECHR.
In June 2004, the Court of Appeal upheld the High Court decision, pointing out that the 1990 Act requires that consent from both parties is needed for the continued storage of frozen embryos, or for their use. The three judges - Lord Justice Thorpe, Lord Justice Sedley and Lady Justice Arden - rejected all the legal arguments, saying that the current law is clear and unambiguous. Johnston was permitted to withdraw his consent at any time, they said. Lord Justice Thorpe commented, however, that the case 'is a tragedy of a kind which may well not have been in anyone's mind when the statute was framed'. The appeal court also commented that 'couples seeking IVF treatment should consider reaching some agreement about what is to happen to their embryos if they separate or also if the genetic father dies before implantation. Any agreement between the parties would be subject to the 1990 Act, but early discussion could avoid heartbreak at a later stage'.
Ms Evans has now lodged an application to have her case heard by the ECHR. She is asking the court to consider whether the law contained in the HFE Act, which requires her to destroy her embryos, is in breach of her human rights. Her claim is based on Article 2 of the Human Rights Convention, which guarantees the right to life; Article 8 (respect for private and family life), and Article 14, which Miss Evans claims makes it unlawful to discriminate against her because of her infertility. The claim under Article 2 is that the embryos have a qualified right to life of their own, an untested argument at the ECHR. Muiris Lyons, the solicitor dealing with Ms Evans' case, said that the argument 'goes to the heart of the debate about when life is created'. He added: 'It is an argument that has not yet been considered by the ECHR and the court's ruling could have a profound effect on the law, medicine and science'.
Muiris Lyons continued, saying 'Natallie has now been left with no other choice than to take her case to Europe'. Natallie Evans told the BBC 'I feel that I have to pursue every possible route to save my embryos', adding: 'I hoped that I could have done so in the UK, but I now have no other choice but to take my case to Europe'. Mr Lyons also said he was going to ask the Human Fertilisation and Embryology Authority to keep the embryos in storage while her case was being considered by the ECHR, a legal process that normally takes several years.
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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.
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