European Court of Human Rights hears embryo claim

Natallie Evans, a British woman seeking the right to be able to use her own frozen IVF embryos, has asked the European Court of Human Rights (ECHR) to consider her case. Last December, the UK's highest court - the House of Lords - refused to hear her appeal, after her case was rejected first by the High Court in September 2003 and then again by the Court of Appeal in June 2004. Ms Evans' is now asking the ECHR to consider whether the law contained in the UK's Human Fertilisation and Embryology Act (HFE Act) 1990, which requires her to destroy her embryos, is in breach of her human rights.

The embryos in question were created in 2001 using Ms Evans' own eggs and sperm from her then partner, who later withdrew his consent to their use. The HFE Act 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. At a previous hearing earlier this 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.

The human rights issues under consideration by the ECHR are that the embryos themselves have a qualified right to life under Article 2 of the European Convention on Human Rights - an as yet untested argument at the ECHR. Natallie Evans has also 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 Convention. Lastly, she has argued that the law discriminates against her because of her infertility, in breach of Article 14 of the Convention, in allowing their 'fate to be entirely determined by her partner'.

After the ECHR hearing, Ms Evans said that she had 'had some knock-backs in the UK and that is why we are here today', adding 'we had a really good hearing. I am just keeping everything crossed'. A decision is not expected for several months, but if the ECHR agrees with Natallie Evans, it will mean that the current law has to be changed. The issue of consent is already one area of the law under consultation by the UK's Department of Health. Its public consultation document on the review of the HFE Act 'invites views on whether the law should be changed to require the withdrawal of consent of both parties whose gametes were used to create an embryo in order to allow a stored embryo to perish'.