EHRM, 07-03-2006, nr. 6339/05

On 12 July 2000 the applicant and her partner, J, commenced treatment at the Bath Assisted Conception Clinic (‘the clinic’). The applicant had been married and had been referred for fertility treatment at the clinic with her husband in 1995, but had not pursued it because of the breakdown of her marriage.

On 10 October 2000 the applicant and J were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly, it would be possible first to extract some eggs for in vitro fertilisation (‘IVF’), but that this would have to be done quickly.

The consultation of 10 October 2000 lasted approximately an hour in total. A nurse explained that the applicant and J would each have to sign a form consenting to the IVF 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 (see paragraphs 27–30 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. Wall J found that J gave these assurances in good faith, because at that time he loved the applicant, genuinely wanted a child with her and wanted to support her during a very difficult period (see also paragraph 15 below).

Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 29 below).

Immediately beneath the title to the form appeared the following words:

J ticked the boxes which recorded his consent to use his sperm to fertilise the applicant's eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed ‘Storage’, opting for the storage of embryos developed in vitro from his sperm for the maximum period of 10 years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J, she ticked the boxes providing for the treatment of herself and for the treatment ‘of myself with a named partner.’

On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus.

In May 2002 the relationship broke up. The future of the embryos was discussed between the parties. On 4 July 2002 J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed.

The clinic notified the applicant of J's withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them, pursuant to section 8(2) of Schedule 3 to the 1990 Act (see paragraph 29 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings.

The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65 page judgment (Evans v. Amicus Healthcare Ltd and others, [2003] EWHC 2161 (Fam)), he dismissed the applicant's claims.

He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance. He rejected the applicant's submission that J was estopped from withdrawing his consent, finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue. It did not, however, and in the changed circumstances of separation, it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment.

As to the applicant's Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant's right to respect for family life was not engaged. He did, however, accept that the relevant provisions of the 1990 Act did interfere with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child (see further paragraphs 26–27 below). He considered it entirely appropriate that the law required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman.

Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 29 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man:

The applicant's appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd, [2004] EWCA Civ 727).

The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that ‘the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme’. J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos. The court rejected the applicant's argument that J had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J, and the other witnesses (see paragraphs 14–15 above). The Court of Appeal was also informed by J's counsel that J's clear position in withdrawing his consent was one of fundamental rather than purely financial objection.

While there was an interference with the private lives of the parties, Lord Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons:

Lady Justice Arden stated, by way of introduction, that:

Arden LJ noted that neither the Warnock Report nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment (see paragraphs 23–27 below). However, she went on to find:

On the issue of discrimination, Lord Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J's finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests.

On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal's judgment.

The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of Dame Mary Warnock DBE to ‘consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.’ The Committee reported in July 1984 (Cmnd 9314) and its recommendations, so far as they related to IVF treatment, were set out in a Green Paper issued for public consultation. After receipt of representations from interested parties, they were included in a White Paper, Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper noted ‘the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development’. Nonetheless, following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990.

The solution recommended and embodied in the 1990 Act was to permit, subject to certain express prohibitions, the creation and subsequent use of live human embryos produced in vitro, subject to a number of conditions, restrictions and time limits.

Thus, by section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3 (1) is an offence (created by section 41(2)(a) of the Act).

One of the policy objectives of the 1990 Act was to promote the welfare of the child. Thus, section 13(5) provides:

The second important policy objective of the 1990 Act was to ensure that both gamete providers (i.e. the providers of the sperm and eggs) continued to consent from the commencement of the treatment until the implantation of the embryos. The primacy of continuing bilateral consent had been central to the Warnock Committee's recommendations about the regulation of IVF treatment and although neither the Warnock Report nor the Green Paper had discussed what was to happen if the parties became estranged during treatment, the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used.

By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with consent, shall be complied with.

Schedule 3 provides:

The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley as follows:

The General Rule stated in the Article 5 of the Council of Europe Convention on Human Rights and Biomedicine States as follows:

Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI , 1989), stated:

Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides:

The Court observes at the outset that, like the Court of Appeal, it accepts the facts as found by the High Court, which had the benefit of hearing the witnesses in person (see paragraph 14 above). In particular, it accepts that J acted in good faith in embarking on the IVF treatment with the applicant, but that he did so only on the basis that their relationship would continue.

It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant's right to respect for her private life. The Court agrees, since ‘private life’, which is a broad term, encompassing, inter alia, aspects of an individual's physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world (Pretty, § 61), incorporates the right to respect for both the decisions to become and not to become a parent.

In the domestic proceedings, the parties and the judges treated the issue as one involving an interference by the State with the applicant's right to respect for her private life, since the relevant provisions of the 1990 Act prevented the clinic from treating the applicant once J had withdrawn his consent. The Court, however, considers that it is more appropriate to analyse the case as one concerning positive obligations. The State has chosen to establish, in the 1990 Act, a detailed legal framework authorising and regulating IVF treatment, the principal aim of which is to facilitate conception by women or couples who would otherwise find it impossible or difficult to conceive by ordinary means. The question which arises under Article 8 is whether there exists a positive obligation on the State 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, the male gamete provider.

The Court does not in any event find it to be of central importance whether the case is examined in the context of the State's positive or negative obligations. The boundaries between the two types of obligation under Article 8 do not always lend themselves to precise definition and the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation (X., Y. and Z. v. the United Kingdom, judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, § 41). The breadth of this margin will vary in accordance with the nature of the issues and the importance of the interests at stake (Pretty, § 70).

The applicant argues that while the State may have a broad margin in deciding whether or not to intervene in the area of IVF treatment, once it does so, the relative importance of the competing interests entails that the State's margin in deciding where to strike the balance is extremely limited or non-existent.

The Court observes that there is no international consensus with regard to the regulation of IVF treatment or to the use of embryos created by such treatment. As appears from the comparative material summarised above (paragraphs 31–39), while certain States have adopted specific legislation in this area, others have either not legislated, or have only partially legislated, relying instead on general legal principles and professional ethical guidelines. Again, there is no consensus as to the point at which consent to the use of genetic material provided as part of IVF treatment may be withdrawn by one of the parties; in certain States, it appears that consent may be withdrawn only up to the point of fertilisation, whereas in other States such withdrawal may occur at any time prior to the implantation of the embryo in the woman; in still other States the point at which consent may be withdrawn is left to the courts to determine on the basis of contract or according to the balance of interests of the two parties.

Since the use of IVF treatment gives 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 touch on areas where there is no clear common ground amongst the Member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one (see the above-mentioned X., Y. and Z judgment, § 44). In this regard, the Court is unable to accept the distinction drawn by the applicant between the intervention of the State in the field of IVF treatment, on the one hand, and its regulation of such treatment, on the other. The two questions are inseparably linked and the State's wide margin must in principle extend both to its decision to intervene in the area and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests.

The Court next observes that the legislation at issue in the present 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. The United Kingdom was particularly quick to respond to the scientific advances in this field. Four years after the birth of the first child conceived by in vitro fertilisation, an expert Committee of Inquiry was appointed under the chairmanship of Dame Mary Warnock DBE. After the Committee had reported, its recommendations, so far as they related to IVF treatment, were set out in a Green Paper issued for public consultation. After receipt of representations from interested parties, they were included in a White Paper and were eventually embodied in the 1989 Bill which became, after Parliamentary debate, the 1990 Act (see paragraph 23 above). Central to the Committee's recommendations and to the policy of the legislation was the primacy of the continuing consent to IVF treatment by both parties to the treatment (see paragraph 27 above). It is true that, as noted by Arden LJ, neither the Warnock Report nor the Green Paper discussed what was to happen if the parties became estranged during treatment. However, the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used and, as the Court of Appeal found in the present case, the policy of the Act was to ensure continuing consent from the commencement of treatment to the point of implantation in the woman (ibid., and see also paragraphs 18 and 20 above).

Thus, Schedule 3 to the 1990 Act places a legal obligation on any clinic carrying out IVF treatment to explain to a person embarking on such treatment that either gamete provider has the freedom to terminate the process at any time prior to implantation. To ensure further that this position is known and understood, each donor must by law sign a form setting out the necessary consents (see paragraphs 10 and 29 above). In the present case, while the pressing nature of the applicant's medical condition required that she and J reach a decision about the fertilisation of her eggs without as much time for reflection and advice as might ordinarily be desired, it is 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 recalls that on several previous occasions it has found that it was not contrary to the requirements of Article 8 of the Convention for a State to adopt legislation governing important aspects of private life which did not allow for the weighing of competing interests in the circumstances of each individual case. While, as noted by the applicant, the nature of the legislation and the particular aspects of private life which were in issue in the Pretty and Odièvre cases (see paragraph 50 above) were different from those in the present case, the Court finds that, as in those cases, 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 field. As the Court of Appeal 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 consent, 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 treatment, but would have created ‘new and even more intractable difficulties of arbitrariness and inconsistency’ (see paragraphs 19 and 20 above).

The Court is not persuaded by the applicant's argument that the situation of the male and female parties to IVF treatment cannot be equated and that a fair balance could in general be preserved only by holding the male donor to his consent. While there is clearly a difference of degree between the involvement of the two parties in the process of IVF treatment, the Court does not accept that the Article 8 rights of the male donor would necessarily be less worthy of protection than those of the female; nor does it regard it as self-evident that the balance of interests would always tip decisively in favour of the female party. In his judgment in the present case, Wall J noted that the provisions of Schedule 3 to the Act applied equally to all patients undergoing IVF treatment, regardless of their sex, and observed that it would not be difficult to imagine an infertile man facing a dilemma similar to that which confronted the present applicant (see paragraph 17 above).

The Court, like the national courts, has great sympathy for the plight of the applicant who, if implantation does not take place, will be deprived of the ability to give birth to her own child. However, like the national courts, the Court does not find that the absence of a power to override a genetic parent's withdrawal of consent, even in the exceptional circumstances of the present case, is such as to upset the fair balance required by Article 8. As noted by Arden LJ (see paragraph 20 above), the personal circumstances of the parties are different from what they were at the outset of the treatment and, even in the present 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 the invalidation of that withdrawal of consent would have on J. The dilemma which would face a court is indeed well illustrated by the Nachmani case itself, on which the applicant relies (see paragraphs 39 and 49 above). In that case, at first instance the District Court found in favour of the woman, holding that the man could no more withdraw his agreement to have a child than if he had fertilised the egg through sexual intercourse. A five-judge panel of the Supreme Court of Israel then reversed the decision, upholding the man's fundamental right not to be forced to become a parent. The eleven-judge panel to which the cases was thereafter referred overturned the five-judge panel's decision, by a majority of seven to four: the judges in the majority found that the woman's interests and in particular her lack of alternatives to achieving genetic parenthood outweighed those of the man; the judges in the minority reached the opposite conclusion, emphasising that the woman had known that the man's consent would be required at every stage and that the agreement could not be enforced after the couple had become separated.

The Court accepts 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. It notes in this regard that this latter solution has been adopted in a number of Member States of the Council of Europe (see paragraph 32 above). However, the central question in terms of Article 8 of the Convention is 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 exceeded the margin of appreciation afforded to it under that Article. In determining this question, the Court attaches some importance to the fact that, while, as noted above, there is no international consensus as to the point at which consent to the use of genetic material may be withdrawn, the United Kingdom is by no means alone among the Member States in granting to both parties to IVF treatment the right to withdraw consent to the use or storage of their genetic material at any stage up to the moment of implantation of the resulting embryo. The Court further notes a similar emphasis on the primacy of consent reflected in the relevant international instruments concerned with medical interventions (see paragraphs 31–42 above).

For the above reasons, the Court finds 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 did not exceed the margin of appreciation afforded to it or upset the fair balance required under Article 8 of the Convention.

There has not therefore been a violation of Article 8 of the Convention.