Evans v Amicus Healthcare Ltd and Others (Secretary of State for Health Intervening); Hadley v Midland Fertility Services Ltd and Others

JurisdictionEngland & Wales
JudgeMr Justice Wall
Judgment Date01 October 2003
Neutral Citation[2003] EWHC 2161 (Fam)
Docket NumberCase No: FD02PO1431
CourtFamily Division
Date01 October 2003

[2003] EWHC 2161 (Fam)

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice Strand, London, WC2A 2LL

The Honourable Mr Justice Wall

Case No: FD02PO1431

Between:
Natallie Evans
Claimant and
and
Amicus Healthcare Ltd
(1) Howard Johnston
(2) Royal United Hospital Bath Nhs Trust
(3) The Secretary Of State For Health
(4) The Human Fertilisation And Embryology Authority
Defendants and
Between:
LORRAINE HADLEY
and
MIDLAND FERTILITY SERVICES LTD (1)
WAYNE HADLEY (2)
THE SECRETARY OF STATE FOR HEALTH (3)
THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY

REPRESENTATION MR ROBIN TOLSON QC AND MS SUSAN FREEBORN (instructed by Messrs Withy King Solicitors for the Claimants)

DR KRISTINA STERN (instructed by Messrs Bevan Ashford Solicitors) for Amicus Healthcare Ltd and the Royal United Hospital Bath NHS Trust and (instructed by Young & Lee) for Midland Fertility Services Ltd.

MR KAMBIZ MORADIFAR AND MS VANESSA MCKINLAY (instructed by Messrs Davey Son & Jones Solicitors) for Mr Howard Johnston

MR STEFANO NUVOLONI (instructed by Messrs Baches Solicitors) for Mr Wayne Hadley MR JASON COPPEL (instructed by the Office of the Solicitor for the Dept of Health for the Secretary of State for Health

MISS DINAH ROSE (instructed by Messrs Morgan Cole Solicitors) for the Human Fertilisation and Embryology Authority

1

Hearing dates : 30 June – 4 July 2003

2

Approved Judgment

Mr Justice Wall
3

Glossary and index

4

1. Throughout this judgment, I propose to use the following abbreviations:

5

(1 “The Act” means the Human Fertilisation and Embryology Act 1990.

(2 “AID” means artificial insemination by donor

(3 “The Authority” means the Human Fertilisation and Embryology Authority.

(4 “The Clinic” in the case of Ms Evans and Mr. Johnston means Bath Assisted Conception Clinic and in the case of Mr and Mrs Hadley means Midland Fertility Services Limited. “The Clinics” means both.

(5 “The Convention” means the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated into English law by the Human Rights Act 1998.

(6 “ HRA 1998” means the Human Rights Act 1998.

(7 “ICSI” means Intra Cytoplasmic Sperm Injection

(8 “IVF” means in vitro fertilisation

(9 PGD means Pre-Implantation Genetic Diagnosis

(10 “The Secretary of State” means the Secretary of State for Health

(11 “Warnock” means the Report of the Committee of Inquiry into Human Fertilisation and Embryology, chaired by Dame Mary Warnock DBE, July 1984: Cmnd 0314

(12 “The White Paper” means Human Fertilisation and Embryology: A Framework for Legislation: November 1987: HMSO Cm 259

6

2. The arguments in these two case were detailed and ranged over a wide area. I was told that this was the first major example of litigation between parties to IVF treatment in the United Kingdom, and the first time that the consent provisions of the Act had been subject to a full-blown HRA 1998 challenge. Given the importance of the issues involved, therefore, I have decided to set out both the facts and the arguments addressed to me in some detail. The result is a judgment of greater length than I had anticipated, and no doubt longer than is strictly necessary for the resolution of the issues, on which I have formed clear views. In order to help those reading the judgment, or wishing to identify a particular issue, I have prepared the following index: -

Subject Matter

Paragraph numbers

Introduction: the cases in broad outline and as pleaded

3 to 15

The history of the Act

16 to 17

Statutory interpretation as applied to the Act

18 to 19

The relevant provisions of the Act

20 to 29

Schedule 3 to the Act

30 to 36

The two most important principles underlying the Act

37

The Facts in the case of Ms Evans and Mr. Johnston

38 to 43

The Events of 10 October 2001

44 to 56

My findings of fact in relation to the events of 10 October 2001

57 to 67

The consents which Ms Evans and Mr Johnston signed on

The first point of law: Are the consents given in this case capable of operating so as to enable the clinics to treat Ms Evans and Mrs Hadley on their own?

The argument

104 to 131

Discussion and Analysis

132 to 149

The second point of law: Have the remaining embryos in Mrs. Hadley's case been “used” in the provision of treatment services, so that Mr. Hadley's consent to their use cannot be varied or withdrawn?

150 to 154

The argument

Discussion and analysis

155 to 165

The Claims under the Human Rights Act 1998

Introduction

166 to 173

Article 2: the Right to Life

174 to 179

Article 8: the Right to respect for private and family life

Is Article 8 engaged?

180 to 182

Is there an interference with the right to respect for private life in this case?

183 to 185

The evidence filed on behalf of the Secretary of State

186 to 188

The case for Ms Evans and Mrs Hadley under Article 8

189 to 228

The Argument for the Secretary of State

229 to 244

The case for Mr. Johnston and Mr Hadley under Article 8

245 to 247

Conclusions on Article 8

248 to 260

Article 12: The right to marry

261 to 265

Article 14: Prohibition of Discrimination

266 to 277

Conclusions under HRA 1998 and the Convention

278

Estoppel

Can an estoppel exist in the face of the Act?

279 to 297

The ingredients and parameters of promissory estoppel

298 to 304

Application of the principles of estoppel to the present case

305 to 311

Information from other jurisdictions

311 to 314

The result

315

Footnote

316 to 320

Summary of the judgment

7

Introduction: the cases in broad outline and as pleaded

8

3. With some exceptions, these two cases raise the same issues, and have been heard together. The two claimants are Ms Natallie Evans and Mrs. Lorraine Hadley. Each underwent IVF treatment with a partner (respectively the second defendants in each of the actions, Mr. Howard Johnston and Mr. Wayne Hadley) from whom each subsequently separated, and with who neither has any continuing relationship. In each case there remain in existence embryos, currently frozen and in storage, created from the gametes of each claimant and her former partner. Each claimant now wishes to remove the embryos created with her gametes from storage in order to have them transferred into her with a view to becoming pregnant.

9

4. As pleaded in the amended particulars of claim by Mr. Robin Tolson, QC and Miss Susan Freeborn, who appear for both claimants, the relief sought in Ms Evans' case is as follows-

a.

A declaration that (Mr. Johnston) has not and may not in the future vary or withdraw his consent given on 10 th October 2001 to the storage or use of the embryos.

b.

An injunction requiring Mr. Johnston to restore his consent to the storage and use of the embryos.

c.

A declaration that the embryos may lawfully be stored until 9 th October 2011 (the expiry of the 10 year storage period for which consent was originally given).

d.

A declaration that the claimant may lawfully be treated with the embryos during the storage period.

e.

If necessary, a declaration of incompatibility pursuant to section 4(4) of HRA 1998 to the effect that section 12 and paragraphs 6(3), 8(2) and 4(1) of Schedule 3 of the Act

(i)

constitute an unnecessary interference with (Ms Evans’) right to respect for her private and / or family life under Article 8 of the Convention;

(ii)

fail to secure (Ms Evans’) right to found a family under Article 12 of the Convention;

(iii)

permit discrimination against (Ms Evans) as a result of her infertility and /or disability, contrary to Article 14 (iv)

Fail to accord the embryo with any protection for such rights under Articles 2 and 8 as its status may justify; further or alternatively fail to protect any proprietary / possessory interest (Ms Evans’) may enjoy in respect of the embryo pursuant to Article 1 of the First Protocol of the Convention.

f.

Such interim orders preserving the embryos as may be necessary in the event that the clinic alters its present position where it has agreed to continue to store the embryos.

10

5. The relief sought by Mrs. Hadley is the same, except that in her case there is no application for an injunction. In her case, however, because three of the embryos created from the gametes provided by herself and Mr. Hadley had, on a previous occasion, been unsuccessfully transferred into her (and thus used), it was argued that the remaining two embryos in storage had also been used. Accordingly, since paragraph 4(2)(a) of Schedule 3 to the Act prevents any withdrawal of consent to treatment once an embryo has been used in providing treatment services, it was argued that Mr. Hadley was prevented by the Act from withdrawing his consent. The argument was initially limited to Mrs. Hadley's case, but in their closing submissions Mr. Tolson and Miss Freeborn sought to include Ms Evans within it. I will deal with the argument under the heading The Second Point of Law in paragraphs 150 to 165 below.

11

6. Neither Mr. Johnston nor Mr. Hadley consents to the embryos being unfrozen in order for them to be transferred into the claimants. Both have withdrawn their consent to the continued storage of the embryos, and both wish the embryos to be allowed to perish. Both say, quite simply, that the Act gives them (and the claimants) an unequivocal and unconditional right to withdraw their consent to treatment and to continued storage of the embryos up until the moment the embryo is used. The stored embryos, they say, have not been “used”, since in the context of this case, “use” means the transfer of the embryo into a woman. In so far as Convention Rights under HRA 1998 are...

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7 cases
  • Evans v Amicus Healthcare Ltd and Others (Secretary of State for Health Intervening); Hadley v Midland Fertility Services Ltd and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 25 Junio 2004
    ...in part, so held in dismissing an appeal by Ms Natallie Evans against the refusal by Mr Justice Wall (The Times October 2, 2003; (2004) 2 WLR 713) to grant her a declaration that she could be lawfully treated with the embryos, created with her gametes and those of her former partner, Howard......
  • The Northern Ireland Human Rights Commission’s Application
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 30 Noviembre 2015
    ...Healthcare Ltd[2004] EWCA Civ 727, [2004] 2 FCR 530, [2004] 3 All ER 1025, [2005] Fam 1, [2004] 3 WLR 681, [2004] 2 FLR 766; affg[2003] EWHC 2161 (Fam), [2003] 3 FCR 577, [2003] 4 All ER 903, [2005] Fam 1, [2004] 2 WLR 713, [2004] 1 FLR F (in utero), Re [1988] FCR 529, [1988] 2 All ER 193, ......
  • Richard Holdich V. Lothian Health Board
    • United Kingdom
    • Court of Session
    • 19 Diciembre 2013
    ...possessory interest in the embryos in terms of ECHR protocol 1, article 1 was not granted [Evans v Amicus Healthcare and Ors [2003] 4 All ER 903 at §§ 4(e) 16, 17]. [32] The relevant legislation at all material times was the 1990 Act, now amended by the 2008 Act. The defenders submit that t......
  • R (Morris) v Westminster City Council (No 3)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 14 Octubre 2005
    ...incompatibility. In this context its permissible nature and ambit were considered by Lord Nicholls in Wilson14 and by this court in Evans v Amicus Healthcare15. Neither seems to have been much heeded so far in Whitehall or the Temple; but I will take paragraph 25 of Ms Alafat's witness stat......
  • Request a trial to view additional results
3 books & journal articles

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