Last Chances, Lost Opportunities and Legal Contortions

Last week in the European Court of Human Rights (ECHR) Natallie Evans lost her battle to be permitted to try for a pregnancy using embryos that she and her former partner, Howard Johnston, created before she was rendered infertile by cancer treatment. The case is emotive in its subject matter, and has generated emotional responses. Natallie Evans has publicly argued that all she wants is '...what every woman wants - to have a baby', while Howard Johnston declared '[T]he key thing for me was just to be able to decide when, and if, I would start a family'. It is easy to identify with both parties and each point of view is understandable.

The job for the ECHR was not to make a decision relying simply on the facts of the case: that would require the 'Wisdom of Solomon'. Instead, the Court considered whether the legal requirement for the continuing consent of both parties breached Natallie Evans' Human Rights under the European Convention on Human Rights. More specifically, whether Articles 8 and 14 of the Convention had been violated and, in addition, did the embryos currently in storage have a right to life under Article 2. Under this final claim, the Court held unanimously that there was no breach of Article 2. While there are different approaches to this issue in the various States that are party to the Convention, the Court was satisfied that the question of when the right to life begins is one that comes within the margin of appreciation of the State concerned. In this case, that means that there is no violation of the right to life simply because, under English law, the embryo is not afforded independent rights and therefore it is not possible to claim a right to life on its behalf. Similarly the Court unanimously rejected Evans' Article 14 claim that she suffered discrimination, largely based on its analysis of her claim under Article 8, which formed the majority of the judgement.

Article 8 concerns the right to respect for private and family life, and the Court held by a five to two majority that this right had not been violated. Here the decision apparently turns on whether one of the party's rights should prevail over the other. Put simply, does Natallie Evans' claim over the embryos outweigh that of Howard Johnston and permit her to use them to secure her only chance of having a genetically related child, even though he objects? However, rather than weigh the competing interests of Evans and Johnston in this respect, the Court looked to the legislation and the requirements for a clear and certain 'bright-line' rule on consent and the necessity to balance private and public interests. As a result the legislation and the legislative process that preceded it were scrutinised to ascertain whether the requirement for continuing consent unbalanced their rights in a way that would favour Natallie Evans' claim.

The Human Fertilisation and Embryology Act 1990 is very clear on this point: explicit consent is required from both parties at every stage of the process until the embryos are implanted. While neither the Act, nor the Warnock Report upon which it was based, explicitly addressed the possibility that the parties might separate during the treatment process, the need for continuing consent is clearly enshrined in the legislation. Anybody who provides material to be used in the production of an embryo has the right to withdraw consent at any time until the embryo is implanted into a woman. Clinics offering IVF treatment are therefore legally obliged under Schedule 3 of the 1990 Act to advise each participant of this requirement and to ensure that informed consent, evidenced in writing is obtained. Natallie Evans and Howard Johnston were a couple when they embarked on fertility treatment. The preliminary medical tests associated with IVF treatment revealed that Ms Evans had pre-cancerous changes in both ovaries, which would require their removal. She was told that her fertility could be protected by harvesting some eggs for fertility treatment but that the surgery ought not to be delayed. As a result only limited time was available for advice and counselling before consent was given. The ECHR found that nothing in the necessity for both parties to consent to each stage of the treatment process contravened Natallie Evans' rights under Article 8, and was content that the procedure for informing the couple as to their rights and the requirements of the 1990 Act was sound.

The individual exceptional circumstances of the applicant's case - namely that this is her last chance to have a genetically-related child - received sympathy, but were disregarded as the majority of the judges preferred instead to focus on the mechanistic legal and policy aspects of the case. The unspoken and unresolved questions include, was Natallie Evans truly informed of her options, should she have been offered alternatives such as egg freezing or fertilisation with donor sperm- even though Howard Johnston insisted there was no need - and did the fact that she presented for treatment with an apparently committed partner effectively rob her of those opportunities, placing all her eggs in one basket? These questions and their legal impact remain unanswered and as a consequence the six embryos that represent Ms Evans' last chance for a genetically related child are set to be destroyed.