IVF Consent

Evans v UK (European Court of Human Rights, 7 March 2006, Application no 6339/05). In July 2000, Ms Evans and her partner, J, started fertility treatment. In October, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. During a consultation held the same day with medical staff, Ms Evans and her partner, J, were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (the 1990 Act), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant's uterus. In November 2000, the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for 2 years before the implantation of the embryos in her uterus. In May 2002, the relationship between the applicant and J ended and he withdrew his consent to the continued storage of the embryos or use of them by the applicant. Ms Evans brought proceedings in the High Court seeking, among other things, an injunction to require J to restore his consent. Her claim was refused in October 2003. In October 2004, the Court of Appeal upheld the High Court's judgment. Leave to appeal was refused. On 27 February 2005, the European Court of Human Rights (the Court) to which the applicant had applied, requested, under r 39 of the Rules of the Court, that the UK Government take appropriate measures to prevent the embryos being destroyed by the clinic before the court had been able to examine the case.

The Court decided that there had been no breach of the right of the embryos, under Art 2 (the right to life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. 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. Neither had there been a breach of the applicant's right to respect for private and family life under Art 8. J had acted in good faith in embarking on IVF treatment with Ms Evans and did so only on the basis that their relationship would continue. The Court observed that there was no international consensus with regard to the regulation of IVF treatment or to the use of embryos created by such treatment, and that the UK was not the only Member State of the Council of Europe to give a right to either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo.

The Court, like the UK national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child. However, like the national courts, the Court did not find that the absence of a power to override a genetic parents withdrawal of consent, even in the exceptional circumstances of the applicant's case, was such as to upset the fair balance required by Art 8. See May [2006] Fam Law for the full news article.