Who has right of ownership over frozen embryos?
03/03/2005
London based Partner, Muiris Lyons talks to Lexis Nexis about the frozen embryo case of his client Natallie Evans. Natallie whose former fiancé refuses to allow her to implant the embryos they created while together, is taking her case to the European Court of Human Rights.
The courts' insistence that embryo ownership must be subject to mutual consent even in exceptional cases will be tested later this year before the European Court of Human Rights (ECourtHR).
Muiris Lyons, Head of Clinical Negligence with Alexander Harris, says that the ECourtHR will fast-track a hearing for his client Natallie Evans whose former fiancé refuses to allow her to implant. The couple had stored six embryos with the intention of later having children before Ms Evans began ovarian cancer therapy, which left her infertile.
"The government has put forward a number of arguments in support of mutual consent arrangements in the Human Fertilisation and Embryology Act 1990," Muiris Lyons says. "For example because fertility treatment can take a while and because embryos can be stored for a while, people's circumstances change and so perhaps they should be entitled to change their minds."
However, strict adherence to mutual consent in the face of exceptional circumstances means the law is not treating Natallie Evans in the same way as women who become pregnant naturally, he argues. "To differentiate between couples who require fertility treatment because they have fertility problems as opposed to those who conceive naturally, amounts to discrimination. If the Act doesn't allow exceptions then maybe it isn't European Convention of Human Rights compliant."
The circumstances of the initial embryo storage decision also make Natallie Evan's case particular, he says. "The couple had a discussion about what would happen if the relationship ended and he was given the opportunity to back out then, and she could have taken another course of action. So it was because of the extra assurances that he gave and the reliance that she placed on them that puts her in an exceptional hardship category."
This discrimination argument has not found favour before the courts, with English law regarding an embryo as not having the same right to life as a foetus. Natallie Evans failed in her attempts to save the embryos in the High Court and Court of Appeal, and late last year the House of Lords refused her permission to appeal. The ECourtHR has put the issue back into national arena when it ruled last July that national law must decide when the right to life begins, and also refused to rule that a foetus which had been aborted by mistake had a right to life entitled to protection under the convention.
"If we don't win in Europe I can't see any voluntary change of the law here which would help Natallie in time. but I would hope that the case would at least prompt people to think when they are redesigning the Act whether there is a better way of managing things," he says.
The Department of Health's review of the Human Fertilisation and Embryology Act 1990 later this year is certain to look at paternal consent in relation to embryo ownership.
"It's perhaps imprudent to make any decisions or reach any conclusions before the European Court of Human Rights makes a decision, but it's not going to need wholesale revision of the Act to introduce some element of flexibility while still maintaining the general principle that both partners have the right to consent and if one withdraws their consent that is the end of the process - unless there are exceptional circumstances," Lyons comments.
Initially published on the Lexis Nexis Butterworths News Analysis website.
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