Information Note on the Court’s case-law 84

March 2006

Evans v. the United Kingdom - 6339/05

Judgment 7.3.2006 [Section IV]

Article 8

Article 8-1

Respect for family life

Respect for private life

Father’s consent required for the continued storage and implantation of fertilised eggs: no violation

[This case was referred to the Grand Chamber on 3 July 2006]

Facts : In 2000 the applicant and her then partner J. sta rted fertility treatment. The applicant 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. Ms Evans and her partner were informed tha t 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  consent at any time befo re the embryos were implanted in the applicant’s uterus. In 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage. The applicant then underwent an operation to remove her ovaries, following which she had to wait for two years before the implantation of the embryos in her uterus.

In 2002 the relationship between the applicant and J. ended and the latter withdrew his consent to the continued storage of the embryos or the use of them by the app licant. The applicant brought proceedings before the High Court seeking, among other things , an injunction to require J. to restore his consent. Her claim was refused, J. having been found to have acted in good faith, as he had embarked on the treatment on the basis that his relationship with Ms Evans would continue. The Court of Appeal upheld the High Court’s judgment and leave to appeal was refused by the House of Lords.

In January 2005 the clinic informed the applicant that it was under a legal obligatio n to destroy the embryos, and intended to do so in February 2005. The European Court, to which the applicant had applied, requested, under Rule 39 of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos be ing destroyed by the clinic before the Court had been able to examine the case.

Law : Article 2 : The Court recalled that the issue of when the right to life began came within the margin of appreciation of the State concerned. 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 Article 2.

Conclusion : No violation (unanimously).

Article 8: The Court accepted that J. had acted in good faith in embarking on IVF treatment with the applicant, and that he had done so only on the basis that their relationship would continue. There was no international consensus with regard to the regulation of IVF treatment or to the use of embryos created by such treatment, and the United Kingdom 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. 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 case touched on areas where there was no clear common ground in Europe, the Court considered that the margin of appreciation to be afforded to the State had to be a wide one which had, in principle, to extend both to its d ecision to intervene in the area 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 Court next observed that the legislation at issue in the applicant’s case was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology. Sch edule 3 to the 1990 Act placed a legal obligation on any clinic carrying out IVF treatment to explain to a person embarking on such treatment that either gamete provider had the freedom to terminate the process at any time prior to implantation. To ensure further that that position was known and understood, each donor had by law to sign a form setting out the necessary consent. In the applicant’s case, while the pressing nature of her medical condition required that she and J. reach a decision about the fer tilisation of her eggs without as much time for reflection and advice as might ordinarily be desired, it was undisputed that it was explained to them both that either was free to withdraw consent at any time before any resulting embryo was implanted in the applicant’s uterus.

The Court reiterated that it was not contrary to the requirements of Article 8 for a State to adopt legislation governing important aspects of private life which did not allow for the weighing of competing interests in the circumstance s of each individual case. Strong policy considerations underlay the decision of the legislature to favour a clear or “bright-line” rule which would serve both to produce legal certainty and to maintain public confidence in the law in a highly sensitive fi eld. As the Court of Appeal had observed, to have made the withdrawal of the male donor’s consent relevant but not conclusive, or to have granted a power to the clinic, to the court or to another independent authority to override the need for a donor’s con sent, would not only have given rise to acute problems of evaluation of the weight to be attached to the respective rights of the parties concerned, particularly where their personal circumstances had changed in the period since the outset of the IVF treat ment, but would have created “new and even more intractable difficulties of arbitrariness and inconsistency”.

The Court was not persuaded by the applicant’s argument that the situation of the male and female parties to IVF treatment could not be equated an d that a fair balance could in general be preserved only by holding the male donor to his consent. While there was clearly a difference of degree between the involvement of the two parties in the process of IVF treatment, the Court did not accept that the Article 8 rights of the male donor would necessarily be less worthy of protection than those of the female; nor did it regard it as self-evident that the balance of interests would always tip decisively in favour of the female party.

The Court, like the na tional 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 powe r to override a genetic parent’s withdrawal of consent, even in the exceptional circumstances of the applicant’s case, was such as to upset the fair balance required by Article 8. The personal circumstances of the parties had changed and, even in the appli cant’s case, it would be difficult for a court to judge whether the effect on the applicant of J’s withdrawal of consent would be greater than the impact of the invalidation of that withdrawal of consent would have on J.

The Court accepted that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the “bright-line” at the point of creation of the embryo. However, the central question in terms of Article 8 was not whether a different solution might have been found by the legislature which would arguably have struck a fairer balance, 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 a rticle. In determining that question, the Court attached some importance to the fact that the United Kingdom was by no means the only country in Europe to grant both parties to IVF treatment the right to withdraw consent to the use or storage of their gene tic material at any stage up to the moment of implantation of the resulting embryo. The Court further noted a similar emphasis on the primacy of consent reflected in the relevant international instruments concerned with medical interventions.

The Court the refore found that, in adopting in the 1990 Act a clear and principled rule, which was explained to the parties to IVF treatment and clearly set out in the forms they both signed, whereby the consent of either party might be withdrawn at any stage up to the point of implantation of an embryo, the United Kingdom had not exceeded the margin of appreciation afforded to it or upset the fair balance required under Article 8.

Conclusion : No violation (five votes to two).

Article 14:The Court was not required to de cide in the applicant’s case whether she could properly complain of a difference of treatment as compared to another woman in an analogous position, because it considered that the reasons given for finding that there was no violation of Article 8 also affo rded a reasonable and objective justification under Article 14.

Conclusion : no violation (unanimously).

Rule 39: The Court decided to maintain its indication that it was desirable in the interests of the proper conduct of the proceedings that the Governmen t take appropriate measures to ensure that the applicant’s embryos were preserved until the Court’s judgment became final or pending any further order.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court .

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