European Court of Human Rights delivers verdict in 'right to frozen embryos case'
07/03/2006
We just wanted to say thank you. We will never be able to repay you or express how grateful we are to you for all the support and help. There would have been no one in the world that we would have had in preference to you to act for us.
John, Newcastle Upon Tyne
Following unsuccessful attempts at the High Court to prevent the destruction of her frozen embryos after her former fiancé withdrew his consent, Natallie Evans was left with no alternative other than to take her fight to the European Court of Human Rights in Strasbourg. Her case was heard by a Chamber of 7 judges in September 2005.
In relation to claims that Natallie's right to Article 8 had been breached, (right to respect for her private and family life) of the 7 judges that heard Natallie's case, 5 have ruled against and two judges dissented.
Commenting on judgement, Natallie's solicitor Muiris Lyons said: 'Natallie is obviously very upset and disappointed. However, she takes some encouragement from the judgment and in particular the approach of the two dissenting judges. The 5 majority judges also expressed their "great sympathy for the plight of Natallie". Natallie has decided to request that the case be referred to the Grand Chamber of the European Court of Human Rights and we will be applying on her behalf.'
Background
In October 2001 whilst undergoing fertility treatment to have the child that she had always longed for, Natallie Evans was told that, due to the presence of pre-cancerous tumours, both of her ovaries had to be removed. In order to preserve the possibility of having a natural child of her own she agreed to have some eggs harvested and to have some embryos created from them and the sperm of her then fiancé Howard Johnston, to be stored for future use. Her ovaries were subsequently removed meaning that whilst she could carry a pregnancy normally she was unable to conceive spontaneously. The use of the stored embryos was therefore the only way for her to have her own genetic child.
Unfortunately, in May 2002 her relationship with her fiancé broke down and in July he wrote to their fertility clinic requesting that the embryos be destroyed.
Naturally, Natallie was devastated and having failed to persuade Howard to change his mind she brought a claim in the High Court in September 2003 challenging the Human Fertilisation & Embryology Act 1990 which permitted Howard to withdraw his consent after the embryos had been created and which required that the embryos be destroyed.
Natallie was unsuccessful in her High Court action. She was granted permission to appeal to the Court of Appeal but in June 2004 they also ruled against her. Natallie applied to the House of Lords but they refused to hear her case.
The European Court of Human Rights in Strasbourg
Natallie was therefore left with no alternative other than to take her fight to the European Court of Human Rights in Strasbourg. Her case was heard by a Chamber of 7 judges in September 2005 and their judgment has been handed down today and is available on the Court's website at www.echr.coe.int
In Strasbourg it was argued on Natallie's behalf that by depriving her of the opportunity to use her stored embryos to have a natural child of her own, the HFEA 1990 breaches her human rights under the European Convention on Human Rights which has been incorporated into UK law by the Human Rights Act 1990. In particular Natallie contended that her Article 8 right to respect for her private and family life had been interfered with and that contrary to Article 14 she was being discriminated against on the grounds of her infertility.
Decision from the Strasbourg Court
We received the decision of the Strasbourg Court this morning. Unfortunately they have found against Natallie. Of the seven judges sitting in the case, 5 ruled against Natallie with two judges dissenting. The full reasons are set out in the judgment which runs to 29 pages but in short the Court decided as follows:
a) the UK were not obliged to take positive steps to ensure that a woman who has embarked on treatment for the specific purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner.
b) the UK in legislating has struck a fair balance between the competing interests of the individual and of the community as a whole. In legislating in respect of the use of IVF treatment, which gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, in an area where there is no clear common ground or consensus amongst the Member States, the UK government enjoys a wide margin of appreciation.
c) There are strong policy considerations in favour of a clear or "bright-line" approach which serves both to produce legal certainty and to maintain public confidence in the law in a highly sensitive field
d) Whilst the UK government might have found a different solution which would have arguably struck a fairer balance, the government did not exceed the wide margin of appreciation afforded to it under the Convention.
e) Accordingly whilst there was an interference with Natallie's Article 8 right to a private and family life the interference was within the permitted the margin of appreciation enjoyed by the UK government.
f) Because there was no breach of Natallie's Article 8 rights it was not necessary for the Court to consider whether as a result of the breach of her Article 8 rights she had been discriminated against under Article 14. This is because the reasons for finding that there was no violation of Article 8 also afford a reasonable and objective justification under Article 14.
There were two thoughtful and powerful dissenting judgments in Natallie's favour. Judges Traja and Mijovic considered that there was a breach of Natallie's Article 8 rights. They considered that the majority decision of the Court gave excessive weight to public policy considerations and to the State's margin of appreciation without paying due attention to the nature of the individual rights in conflict. They felt that the case concerned IVF procreation, a right which goes in the direction of respect for life as a higher ranking value and that Natallie's particularly important interest deserves a fairer balancing than that struck by the 1990 Act.
Given Natallie's exceptional situation they considered that there should have been a deeper consideration by the domestic authorities and that they were under an obligation to secure her right to become a mother in her exceptional circumstances. The 1990 Act negates the very core of Natallie's right and that is not acceptable under the Convention. The dilemma between Natallie's right to have a child and her former partner's right not to become a father should not be resolved on the basis of such a rigid scheme and the blanket enforcement by the UK law of one party's withdrawal of consent.
In their view the interests of the party who withdraws consent and wants to have the embryos destroyed should prevail (if domestic law so provides) unless the other party a) has no other means to have a genetically-related child; and b) has no children at all; and c) does not intend to have recourse to a surrogate mother in the process of implantation. They consider such an approach would strike a balance between public and private interests, as well as between conflicting individual rights themselves. The test is neutral because it can equally apply to female and male parties.
Natallie is obviously very upset and disappointed. However, she takes some encouragement from the judgment and in particular the approach of the two dissenting judges. The 5 majority judges expressed their "great sympathy for the plight of Natallie". They end their judgment by reminding us of our ability to ask that her case be heard, unusually, by the Grand Chamber of the European Court of Human Rights. In those circumstances and because of the forceful comments of the two judges who were in Natallie's favour, Natallie has decided to request that the case be referred to the Grand Chamber. This will involve us applying on her behalf for the case to be referred. Her application will then be considered by a panel of 5 new judges who will decide whether or not to refer the case to the Grand Chamber. If Natallie is successful then her case will be considered by the Grand Chamber which consists of 17 judges.
Time is against Natallie. The 5 year statutory storage period under the HFEA 1990 Act expires in October. We will therefore be inviting the Grand Chamber to hear her application as a matter of urgency. The European Court has indicated that the embryos should remain in storage until any application to the Grand Chamber has been determined.
Whilst Natallie is determined to do whatever she can to save her embryos, she has never wanted to deal with this through the Courts and she still hopes that Howard may change his mind. If there is anything she can do to persuade him, she will and she remains willing to agree to any terms or conditions that he may wish, as she has done throughout this case. She sought to persuade Howard before she went to the Courts and she would still much rather deal with this in that way.
7 judges have now expressed their great sympathy for Natallie. Two have ruled that her basic human rights were breached.
It is not too late for Howard to reconsider and Natallie asks him to at least think about it.
Natallie commented: 'I was very disappointed to learn of the judgment this morning. I had hoped that today would be a day for me to celebrate. I had really hoped that the Strasbourg decision would be an end to what I have gone through over the last 4 years. However, I am still as determined as ever to do everything possible to be allowed to try for a child of my own using my stored embryos. I have been advised that I can ask for the Grand Chamber of the European Court to consider my case and I intend to that.
I would still prefer not to have to use the Courts. Howard may feel it is too late for him to change his mind but it is not. Howard, please think about it.'
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