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Evans v United Kingdom

Family Court Reports Cited authorities 14 Cited in 16 Precedent Map Related
Vincent
JudgeJUDGE ROZAKIS (PRESIDENT),JUDGES COSTA,BRATZA,ZUPANCIC,LORENZEN,TURMEN,BUTKEVYCH,VAJIC,TSATSA-NIKOLOVSKA,BAKA,KOVLER,ZAGREBELSKY,MULARONI,SPIELMANN,JAEGER,THOR BJORGVINSSON,AND ZIEMELE,MR E FRIBERGH (REGISTRAR)
Judgment Date10 January 2007

Human rights – Private and family life – Life – Medical treatment – Human fertilisation – Embryo – Frozen stored embryos – Consent to treatment together of each of male and female gamete providers in treatment involving in vitro fertilisation, freezing and storage of embryos – Stored frozen embryos providing applicants only chance of giving birth to own child – Male donor withdrawing consent to storage of embryos – IVF clinic under obligation to destroy embryos – Whether violation of embryos’ right to life – Whether violation of applicants right to private and family life – Human Fertilisation and Embryology Act 1990, Sch 3, para 8(2) – Human Rights Act 1998, Sch 1, Pt 1, arts 2, 8.

In July 2000, the applicant and her partner, J, commenced treatment at a conception clinic. On 10 October, they were informed that the applicant had pre-cancerous tumours in both ovaries and that the ovaries would have to be removed, but that it would be possible first to extract some eggs for in vitro fertilisation (IVF) if the procedure was carried out quickly. A nurse explained that the applicant and J would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990, it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus. The applicant asked whether it would be possible to freeze her unfertilised eggs, but was informed that that procedure, which had a lower chance of success, was not performed at that clinic. J reassured the applicant that they would not split up and that she did not need to consider the freezing of her eggs. They entered into the necessary consents by signing the relevant forms. In November 2001, 11 eggs were harvested and fertilised, subsequent to which six embryos were created and consigned to storage. The applicant underwent an operation to remove her ovaries and was told that she should wait two years before attempting to implant the embryos in her uterus. In May 2002, the relationship broke down and in July, J wrote to the clinic, stating that the embryos should be destroyed. The clinic notified the applicant of J’s lack of consent to future use, stating that it was obliged to destroy the embryos pursuant to para 8(2) of Sch 3 to the 1990 Act. The applicant brought proceedings, seeking, inter alia, an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration that he could

not vary his earlier consent. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings. The claims were dismissed (Evans v Amicus Healthcare Ltd[2003] 3 FCR 577) with that decision being upheld on appeal ([2004] 2 FCR 530). Permission to appeal to the House of Lords was refused. The applicant brought proceedings in the European Court of Human Rights, alleging, inter alia, that the provisions of domestic law requiring the embryos to be destroyed following J’s withdrawal of consent to their storage violated the embryos’ right to life pursuant to art 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. She further contended that the national legislation violated her right to respect for private and family life pursuant to art 8 of the Convention. Her application was dismissed in March 2006 ([2006] 1 FCR 585). In June, she successfully requested the referral of the case to the Grand Chamber.

Held – (by majority) (1) Under English law, an embryo did not have independent rights or interests and could not claim, or have claimed on its behalf, a right to life under art 2. There had, therefore, not been a violation of that provision in the instant case.

(2) It was not disputed that art 8 was applicable and that the instant case concerned the applicant’s right to respect for her private life. ‘Private life’, which was a broad term encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world, incorporated the right to respect for both the decisions to become and not to become a parent. It had to be noted, however, that the applicant had not complained that she was in any way prevented from becoming a mother in a social, legal, or even physical sense, since there was no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes. Her complaint, more precisely, had been that the consent provisions of the 1990 Act prevented her from using the embryos that she and J had created together, and thus, given her particular circumstances, from ever having a child to whom she was genetically related. That more limited issue, concerning the right to respect for the decision to become a parent in the genetic sense, also fell within the scope of art 8. The instant case did not involve simply a conflict between individuals; the legislation in question also served a number of wider public interests, in upholding the principle of the primacy of consent and promoting legal clarity and certainty, for example. Since the use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the instant case touched on areas where there was no clear common ground amongst the member states, the margin of appreciation to be afforded to the respondent state had to be a wide one. That margin had to extent in principle both to the state’s decision as to whether or not to enact legislation governing the use of IVF treatment and, once having

intervened, to the detailed rules it laid down in order to achieve a balance between the competing public and private interests. The fact that it had become technically possible to keep human embryos in frozen storage gave rise to an essential difference between IVF and sexual intercourse, namely the possibility of allowing a lapse of time, which might be substantial, to intervene between creation of the embryo and its implantation in the uterus. It was legitimate, and indeed desirable, for a state to set up a legal scheme which took this possibility of delay into account. The decision as to the principles and policies to be applied in that sensitive field had primarily to be for each state to determine. The absolute nature of the law was not, in itself, inconsistent with art 8. Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the legislature’s decision to enact provisions permitting of no exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his of her genetic material without his or her continuing consent. In addition to the principle at stake, the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis, entirely incommensurable interests. Those general interests pursued by the legislation were legitimate and consistent with art 8. It would have been possible for Parliament to regulate the situation differently. However, the central question under art 8 was not whether different rules might have been adopted by the legislature, but whether, in striking the balance at the point at which it did, Parliament had exceeded the margin of appreciation afforded to it under that article. Given the lack of European consensus on that point, the fact that the domestic rules were clear and had been brought to the attention of the applicant and that they struck a fair balance between the competing interests, there had been no violation of art 8 of the Convention; Pretty v UK (App no 2346/02) [2002] 2 FCR 97 and Odievre v France (App no 42326/98) [2003] 1 FCR 621 considered.

Cases referred to in judgment

Associated Society of Locomotive Engineers & Firemen v UK (2007) Times, 9 March, [2007] All ER (D) 348 (Feb).

AZ v BZ (2000) 725 NE 2d 1051, Mass SC.

Davis v Davis (1992) 842 SW 2d 588, Tenn SC.

Dudgeon v UK (1981) 4 EHRR 149, [1981] ECHR 7525/76, ECt HR.

Evans v Amicus Healthcare Ltd[2004] EWCA Civ 727, (2004) 78 BMLR 181, [2004] 3 All ER 1025, [2005] Fam 1, [2004] 3 WLR 681.

Frette v France[2003] 2 FCR 39, ECt HR.

Goodwin v UK (2002) 67 BMLR 199, ECt HR.

Hatton v UK (2003) 15 BHRC 259, ECt HR.

James v UK (1986) 8 EHRR 213, ECt HR.

JB v MB (2001) WL 909294, New Jersey Sup Ct.

K and T v Finland[2001] 2 FCR 673, ECt HR.

Kass v Kass (1998) 673 NYS 2d 350, NY SC.

Litowitz v Litowitz (2002) 48 P 3d 261, Wash SC.

Nachmani v Nachmani (1996) 50(4) PD 661 (Isr), Isr SC.

Odièvre v France[2003] 1 FCR 621, ECt HR.

Pretty v UK (2002) 66 BMLR 147, ECt HR.

R (on the application of Quintavalle) v Secretary of State for Health[2003] UKHL 13, (2003) 71 BMLR 209, [2003] 2 All ER 113, [2003] 2 AC 687, [2003] 2 WLR 692.

Thlimmenos v Greece (2001) 31 EHRR 15, ECt HR.

Vo v France (2004) 79 BMLR 71, ECt HR.

X v Netherlands (1985) 8 EHRR 235, [1985] ECHR 8978/80, ECt HR.

X, Y and Z v UK (1997) 39 BMLR 128, (1997) 24 EHRR 143, ECt HR.

Application

The applicant, Natalie Evans, lodged an application against the United Kingdom of Great Britain and Northern Ireland complaining under arts 2, 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 that domestic law permitted her former partner effectively to withdraw his consent to the storage and use by her of embryos created jointly by them. The facts are set out in the judgment.

10 April 2007.

The European Court of Human Rights (Grand Chamber) delivered the following judgment. PROCEDURE

1. The case originated in an application (no 6339/05) against...

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