JOINT DISSENTING OPINION OF JUDGES TÃœRMEN, TSATSA-NIKOLOVSKA, SPIELMANN AND ZIEMELE

1. We voted against the finding that there has been no violation of Article 8 of the Convent ion and no violation of Article 14 taken in conjunction with Article 8.

2. In the instant case the applicant complained that the impact of the consent rules in the 1990 Act was such that there would be no way for a woman in her position to secure her future prospects of bearing a genetically related child. She explained that part of the purpose of reproductive medicine was to provide a possible solution for those who would otherwise be infertile. That purpose was frustrated if there was no scope for exceptions in special circumstances (see paragraphs 62-64 of the judgment).

3. The parties and the Court agreed that Article 8 was applicable and that the case concerned the applicant ’ s right to respect for her private life (paragraph 71). The Court went on to say (paragraph 72) that the more specific issue concerning the right to respect for the decision to become a parent in the genetic sense also fell within the scope of Article 8. We agree with the Court ’ s reasoning as concerns the applicability of Article 8 and the more specific issue at stake. We would like to underline the importance of the Court ’ s statement as to the applicability of Article 8 in the circumstances of the case.

4. In its assessment the Court examined the nature of the rights at issue under Article 8 (paragraphs 71-74) and whether the case involved a positive obligation or an interference (paragraphs 75-76). On the first issue the Court stated that the case involved a conflict between the Article 8 rights of two private individuals (paragraph 73) and added that the impugned legislation also served a number of wider, public interests, in upholding the primacy of consent and promoting legal clarity and certainty (paragraph 74). Considering that it was more appropriate to analyse the case as one concerning positive obligations, the Court stated that the principal issue was whether the legislative provisions as applied in the present case struck a fair balance between the competing public and private interests involved (paragraph 76). Moreover, the Court considered that since the use of in vitro fertilisation ( 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 amongst member States, the margin of appreciation to be afforded to the respondent State had to be a wide one (paragraph 81). This margin of appreciation must, according to the Court, in principle extend both to the State ’ s decision whether or not to enact legislation governing the use of IVF treatment and, having intervened, to the detailed rules it lay down in order to achieve a balance between the competing public and private interests (paragraph 82).

5. We are unable to subscribe to the Court ’ s decision that it is more appropriate to analyse the case as one concerning positive obligations.

6. We see the case as one of interference with the applicant ’ s right to respect for the decision to become a genetically related parent. We can accept that the interference was prescribed by law and had a legitimate aim in terms of the protection of public order and morals and the rights of others. But was this interference necessary and proportionate in the special circumstances of the case? We consider that the applicant ’ s right to decide to become a genetically related parent weighs heavier than that of J . ’ s decision not to become a parent in the present ca se. Our reasons are as follows:

( i) The 1990 Act does not provide for the possibility of taking into consideration the very special medical condition affecting the applicant. We can agree with the majority that, in particular where an issue is of a morally and ethi cally delicate nature, a bright- line rule may best serve the various – often conflicting – interests at stake. It has been said that “the advantage of a clear law is that it provides certainty” . But it has also been admitted that “its disadvantage is that if it is too clear – categorical – it provides too much certainty and no flexibility” [1] . Therefore, given the particular circumstances of the case, the main problem lies in the absolute nature of the “bright- line rule”.

( ii) In the instant case the majority ’ s approach resulted not simply in the applicant ’ s decision to have a genetically related child being thwarted but in the effective eradication of any possibility of her having a genetically related child, thus rendering any such decision now or at any later time meaningless.

7. Therefore, in our view the application of the 1990 Act in the applicant ’ s circumstances is disproportionate. Because of its absolute nature, the legislation precludes the balancing of competing interests in this particular case. In fact, even though the majority accepts that a balance has to be struck between the conflicting Article 8 rights of the parties to the IVF treatment (paragraph 90), no balance is possible in the circumstances of the present case since the decision upholding J . ’ s choice not to become a parent involves an absolute and final elimination of the applicant ’ s decision. Rendering empty or meaningless a decision of one of the two parties cannot be considered as balancing the interests. It is to be noted that the case is not about the possibility of adopting a child or hosting a donated embryo (see paragraph 72). Incidentally, J . will still be able to take a decision to become a parent of his own child, whereas the applicant has had her last chance.

8. The applicant underwent surgery to remove her ovaries (26 November 2001). Therefore, the eggs that were extracted from her for IVF treatment were her last chance to have a genetically related child. J . not only knew this fact very well, but also gave her an assurance that he wanted to be the father of her child. Without such an assurance, the applicant could have tried to seek other ways to have a child of her own. In paragraph 90 of the judgment, where the majority tries to strike a balance between the rights and interests of the applicant and of J . , no weight is given to this “assurance” element, that is, to the fact that the applicant acted in good faith, relying on the assurance given to her by J. The decisive date was 12 November 2001: the date when the eggs were fertilis ed and six embryos created. From that moment on, J . was no longer in control of his sperm. An embryo is a joint product of two people, which, when im planted into the uterus, will turn into a baby. The act of destroying an embryo also involves destroying the applicant ’ s eggs. In this sense too, the British legislation has failed to strike the right balance.

9. The particular circumstances of the case lead us to believe that the applicant ’ s interests weigh more heavily than J . ’ s interests and that the United Kingdom authorities ’ failure to take this into account constitutes a violation of Article 8.

10. Once again, we would like to emphasis e that we agree with the majority that the 1990 Act per se is not contrary to Article 8 and that the consent rule is important for IVF treatment. We agree that, looking at the relevant legislation of the other States, different approaches emerge and that the Court is justified in saying that there is no European consensus on the details of regulation of IVF treatment. As we have said, however, we see the instant case differently since its circumstances make us look beyond the mere question of consent in a contractual sense. The values involved and issues at stake as far the applicant ’ s situation is concerned weigh heavily against the formal contractual approach taken in this case.

11. Given the importance of the matter and the extreme nature of her situation, it is difficult for us to infer anything from the fact that she knew that “as a matter of law, J . would be free to withdraw consent to implantation at any time ” (paragraph 88). Surely one is not suggesting that Ms Evans – in addition to all that she had to go through – was also contemplating the probability of J . withdrawing his consent. It is once again obvious that the case does not sit comfortably with the formal scheme of law that has been applied to it.

12. A sensitive case like this cannot be decided on a simplistic, mechanical basis, namely, that there is no consensus in Europe, therefore the Government have a wide margin of appreciation; the legislation falls within the margin of appreciation; and this margin extends to the rules it lays down in order to achieve a balance between the competing public and private interests.

Certainly, States have a wide margin of appreciation when it comes to enacting legislation governing the use of IVF. However, that margin of appreciation should not prevent the Court from exercising its control, in particular in relation to the question whether a fair balance between all competing interests has been struck at the domestic level [2] . The Court should not use the margin of appreciation principle as a merely pragmatic substitute for a thought-out approach to the problem of proper scope of review [3] .

13. To conclude, unlike the majority we consider that the legislation has not struck a fair balance in the special circumstances of the case. Where the effect of the legislation is such that, on the one hand, it provides a woman with the right to take a decision to have a genetically related child but, on the other hand, effectively deprives a woman from ever again being in this position, it inflicts in our view such a disproportionate moral and physical burden on a woman that it can hardly be compatible with Article 8 and the very purposes of the Convention protecting human dignity and autonomy.

14. Concerning Article 14 of the Convention we w ould like to say the fol lowing.

15. It could be that for the purposes of Article 14 the closest comparator is an infertile man, which was the example given by the trial judge, Mr Justice Wall (paragraph 23). However, even this comparison does not illustrate the whole complexity of the instant case. It is recognised by those international institutions w hose specific mandate is to focus on the rights of women that it is justified and necessary to address “ the health rights of women from the perspective of women ’ s needs and interests [ in view of ] distinctive features and factors that differ for women in comparison to men, such as: (a) biological factors ... such as their ... reproductive function ... (CEDAW General Recommendation No. 24 (20th session, 1999))”. A woman is in a different situation as concerns the birth of a child, including where the legislation allows for artificial fertilisation methods. We believe therefore that the proper approach in the instant case was that adopted under Article 14 in the case of Thlimmenos v . Greece , which recognised that different situations require different treatment [4] . We see the circumstances of the applicant in this light not least because of the excessive physical and emotional burden and effects [5] caused by her condition, and it is on this basis that we voted for a violation of Article 14 in conjunction with Article 8.

[1] . See M.-B. Dembour, Who Belie ves in Human Rights? Reflections on the European Convention , Cambridge , Cambridge University Press, 2006, p. 93.

[2] . We would like to point out that in the recent judgment of Associated Society of Locomotive Engineers & Firemen (ASLEF) v. the United Kingdom , no. 11002/05, § 46, 27 February 2007, the Court restated the role of this margin clearly: “ Finally, in striking a fair balance between the competing interests, the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention ( see, amongst many authorities, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003 ‑ VIII) . However, since this is not an area of general policy, on which opinions within a democratic society may reasonably differ widely and in which the role of the domestic policy-maker should be given special weight (see , for example, James and Others v. the United Kingdom , 21 February 1986, § 46, Series A no. 98, where the Court found it natural t hat the margin of appreciation ‘ available to the legislature in implementing social and economi c policies should be a wide one’ ), the margin of appreciation will play only a limited role. ”

The approach adopted in ASLEF takes into account the views of national parliaments to a “ healthy ” extent (in giving it special weight) when it comes to setting out a general policy to be contrasted with decisions on the basic rights of individuals (in the context of their individual applications) which , according to the above , would require a limited role for the margin of appreciation. In the Evans case the majority grants a wide margin of appreciation, relying heavily on general policy issues, and extends this wide margin of appreciation to the detailed rules the State lays down in order to achieve a balance between the competing public and private interests (see paragraphs 81-82 of the judgment and paragraph 4 in fine of our joint dissenting opinion). L ike most cases before this Court, the Evans case is not a case about general policy only; it is a case about important individual interests. In our view, the majority has placed excess ive weight on such general policy issues forming merely the background to this case (see section 3 (The margin of appreciation), in particular paragraph 81) and has not undertaken a sufficient ad hoc balancing exercise in section 4 (Compliance with Article 8, paragraphs 83-92).

[3] . R. St. J. Macdonald, “The m argin of a ppreciation”, The European System for the Protection of Human Rights , R. St. J. Macdonald et al. [eds.], 199 3, p. 83, at pp. 84 and 124, quoted by E. Brems, “The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 1996, at p. 313. See also the critical appraisal of the “margin of appreciation” theory by M. R. Hutchinson, “The Margin of Appreciation Doctrine in the European Court of Human Rights”, International and Comparative Law Quarterly , 1996, pp. 638-50.

[4] . Thlim menos v. Greece [GC], no. 34369/97, ECHR 2000 ‑ IV .

[5] . C. Packer, “Defining and Delineating the Right to Reproductive Choice”, Nordic Journal of International Law , 1998, pp. 77- 95, at p. 95.