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EVANS v. THE UNITED KINGDOM - 6339/05 [2007] ECHR 264 (10 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/264.html
Cite as:
46 EHRR 34,
22 BHRC 190,
[2007] Fam Law 588,
(2007) 95 BMLR 107,
(2008) 46 EHRR 34,
[2007] 2 FCR 5,
[2007] 1 FLR 1990,
[2007] ECHR 264
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CASE OF EVANS v. THE UNITED KINGDOM
(Application
no. 6339/05)
JUDGMENT
STRASBOURG
10 April
2007
This
judgment is final but may be subject to editorial revision.
The case of Evans v. the United Kingdom,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Mr C.L. Rozakis, President,
Mr J.-P.
Costa,
Sir Nicolas Bratza,
Mr B.M. Zupančič,
Mr P.
Lorenzen,
Mr R. Türmen,
Mr V. Butkevych,
Mrs N.
Vajić,
Mrs M. Tsatsa-Nikolovska,
Mr A.B. Baka,
Mr A.
Kovler,
Mr V. Zagrebelsky,
Mrs A. Mularoni,
Mr D.
Spielmann,
Mrs R. Jaeger,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, Judges,
and Mr E.
Fribergh, Registrar.
Having deliberated in private on 22
November 2006 and 12 March 2007,
Delivers the following judgment, which
was adopted on the latter date:
PROCEDURE
The
case originated in an application (no. 6339/05) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Ms Natallie Evans (“the applicant”), on 11
February 2005.
The
applicant, who had been granted legal aid, was represented by Mr M.
Lyons, a lawyer practising in London. The British Government (“the
Government”) were represented by their Agents, Ms Emily
Willmott and Ms Kate McCleery, Foreign and Commonwealth Office.
The
applicant complained under Articles 2, 8 and 14 of the Convention
that domestic law permitted her former partner effectively to
withdraw his consent to the storage and use by her of embryos created
jointly by them.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
On
27 February 2005 the President of the Chamber decided to indicate to
the Government, under Rule 39 of the Rules of Court, that, without
prejudice to any decision of the Court as to the merits of the case,
it was desirable in the interests of the proper conduct of the
proceedings that the Government take appropriate measures to ensure
that the embryos were preserved until the Court had completed its
examination of the case. On the same day, the President decided
that the application should be given priority treatment, under Rule
41; that the admissibility and merits should be examined jointly, in
accordance with Article 29 § 3 of the Convention and Rule 54A;
and, under Rule 54 § 2 (b), that the Government
should be invited to submit written observations on the admissibility
and merits of the case. On 7 June 2005 the Chamber
confirmed the above rulings (Rule 54 § 3).
On
7 March 2006, after a hearing dealing with both the question of
admissibility and the merits (Rule 54 § 3), the Chamber composed
of Mr J. Casadevall, President, Sir Nicolas Bratza, Mr M.
Pellonpää, Mr R. Maruste, Mr K. Traja, Ms L.
Mijovic and Mr J. Šikuta, judges, and Mr M. O'Boyle, Section
Registrar, declared the application admissible and held, unanimously,
that there had been no violation of Articles 2 or 14 of the
Convention and by five votes to two that there had been no violation
of Article 8. A joint dissenting opinion by Mr Traja and Ms Mijovic
was appended to the judgment.
On
5 June 2006 the applicant requested the referral of the case to the
Grand Chamber in accordance with Article 43 of the Convention. A
panel of the Grand Chamber granted that request on 3 July 2006. On
the same date, the President of the Court decided to prolong the
indication to the Government made on 22 February 2005 under Rule 39
of the Rules of Court (see paragraph 5 above).
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24.
The
applicant and the Government each filed submissions on the merits.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 22 November 2006 (Rule 59 § 3).
There
appeared before the Court:
(a)
for the Government
Ms
Helen MULVEIN, Agent,
Mr
Philip SALES, Q.C.
Mr Jason COPPEL,
Counsel,
Ms
Karen ARNOLD,
Ms Gwen SKINNER,
Advisers;
(b)
for the applicant
Mr
Robin TOLSON, Q.C.,
Ms Susan FREEBORN,
Counsel,
Mr Muiris LYONS,
Solicitor,
Ms
Anita MURPHY O'REILLY, Adviser,
Ms
Natallie EVANS, Applicant.
The
Court heard addresses by Mr Sales and Mr Tolson, as well as their
answers to questions put by Judges Spielmann, Türmen, Myjer,
David Thór Björgvinsson, Costa and Zagrebelsky.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in October 1971 and lives in Wiltshire.
The
facts, as found by Mr Justice Wall (“Wall J”), who heard
the parties' oral evidence (see paragraph 20 below), are as follows.
A. The IVF treatment
On
12 July 2000 the applicant and her partner, J (born in November
1976), commenced treatment at the Bath Assisted Conception Clinic
(“the clinic”). The applicant had been referred for
treatment at the clinic five years earlier, when she was married, 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 to
withdraw his or her consent at any time before the embryos were
implanted in the applicant's uterus (see paragraph 37 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.
Thereafter,
the couple entered into the necessary consents, by signing the forms
required by the 1990 Act (see paragraph 37 below).
Immediately
beneath the title to the form appeared the following words:
“NB – do not sign this form unless you have
received information about these matters and have been offered
counselling. You may vary the terms of this consent at any time
except in relation to sperm or embryos which have already been used.
Please insert numbers or tick boxes as appropriate.”
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.
B. The High Court proceedings
In
May 2002 the relationship broke down. 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 embryos should
be destroyed.
The
clinic notified the applicant of J's lack of consent to further use
of the embryos and informing her that it was now under a legal
obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3
to the 1990 Act (see paragraph 37 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 under the terms of the 1990 Act, and as a matter of
public policy, it had not been open to J to give an unequivocal
consent to the use of the embryos irrespective of any change of
circumstance, and that, as a matter of fact, J had only ever
consented to his treatment “together” with the applicant,
and not to her continuing treatment on her own in the event that
their relationship ended. Wall J thus 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 on the
basis that their relationship would continue. On 10 October 2001, J
had been doing his best to reassure the applicant that he loved her
and wanted to be the father of her children; giving a truthful
expression of his feelings at that moment, but not committing himself
for all time. Wall J observed that in the field of personal
relationships, endearments and reassurances of this kind were
commonplace, but they did not – and could not – have any
permanent, legal effect. In undergoing IVF with J, the applicant had
taken the only realistic course of action open to her. Wall J
continued:
“However, even if I am wrong about that, and even
if an estoppel is capable of existing in the face of the Act, I do
not, for the reasons I have given, think it would be unconscionable
to allow [J] to withdraw his consent. It is a right which the Statute
gives him within the clear scheme operated by Parliament. It was the
basis upon which he gave his consent on 10 October 2001. It is
perfectly reasonable for him, in the changed circumstances which
appertain, not to want to father a child by Ms Evans.”
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 accepted that the relevant provisions of the 1990 Act
interfered 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. 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 37 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:
“If a man has testicular cancer and his sperm,
preserved prior to radical surgery which renders him permanently
infertile, is used to create embryos with his partner; and if the
couple have separated before the embryos are transferred into the
woman, nobody would suggest that she could not withdraw her consent
to treatment and refuse to have the embryos transferred into her. The
statutory provisions, like Convention rights, apply to men and women
equally.”
C. The Court of Appeal's judgment
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”. Like
Wall J, the Court of Appeal found that J had only ever consented to
undergoing “treatment together” with the applicant, and
had never consented to the applicant using the jointly-created
embryos alone. Once the relationship had broken down, and J had
indicated that he did not wish the embryos to be preserved or used by
the applicant, they were no longer being treated “together”.
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
paragraph 20 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,
Lords Justices Thorpe and Sedley found it to be justified and
proportionate, for the following reasons:
“The less drastic means contended for here is a
rule of law making the withdrawal of [J's] consent non-conclusive.
This would enable [the applicant] to seek a continuance of treatment
because of her inability to conceive by any other means. But unless
it also gave weight to [J's] firm wish not to be father of a child
borne by [the applicant], such a rule would diminish the respect owed
to his private life in proportion as it enhanced the respect accorded
to hers. Further, in order to give it weight the legislation would
have to require the Human Fertilisation and Embryology Authority or
the clinic or both to make a judgment based on a mixture of ethics,
social policy and human sympathy. It would also require a balance to
be struck between two entirely incommensurable things. ...
... The need, as perceived by Parliament, is for
bilateral consent to implantation, not simply to the taking and
storage of genetic material, and that need cannot be met if one half
of the consent is no longer effective. To dilute this requirement in
the interests of proportionality, in order to meet [the applicant's]
otherwise intractable biological handicap, by making the withdrawal
of the man's consent relevant but inconclusive, would create new and
even more intractable difficulties of arbitrariness and
inconsistency. The sympathy and concern which anyone must feel for
[the applicant] is not enough to render the legislative scheme ...
disproportionate.”
Lady
Justice Arden stated, by way of introduction, that:
“The 1990 Act inevitably uses clinical language,
such as gametes and embryos. But it is clear that the 1990 Act is
concerned with the very emotional issue of infertility and the
genetic material of two individuals which, if implanted, can lead to
the birth of a child. ... Infertility can cause the woman or man
affected great personal distress. In the case of a woman, the ability
to give birth to a child gives many women a supreme sense of
fulfilment and purpose in life. It goes to their sense of identity
and to their dignity.”
She
continued:
“Like Thorpe and Sedley LJJ, I consider that the
imposition of an invariable and ongoing requirement for consent in
the 1990 Act in the present type of situation satisfies Article 8 §
2 of the Convention. ... As this is a sensitive area of ethical
judgment, the balance to be struck between the parties must primarily
be a matter for Parliament ... . Parliament has taken the view that
no one should have the power to override the need for a genetic
parent's consent. The wisdom of not having such a power is, in my
judgment, illustrated by the facts of this case. The personal
circumstances of the parties are different from what they were at the
outset of treatment, and it would be difficult for a court to judge
whether the effect of [J's] withdrawal of his consent on [the
applicant] is greater than the effect that the invalidation of that
withdrawal of consent would have on [J]. The court has no point of
reference by which to make that sort of evaluation. The fact is that
each person has a right to be protected against interference with
their private life. That is an aspect of the principle of
self-determination or personal autonomy. It cannot be said that the
interference with [J's] right is justified on the ground that
interference is necessary is protect [the applicant's] right, because
her right is likewise qualified in the same way by his right. They
must have equivalent rights, even though the exact extent of their
rights under Article 8 has not been identified.
The interference with [the applicant's] private life is
also justified under Article 8 § 2 because, if [the
applicant's] argument succeeded, it would amount to interference with
the genetic father's right to decide not to become a parent.
Motherhood could surely not be forced on [the applicant] and likewise
fatherhood cannot be forced on [J], especially as in the present case
it will probably involve financial responsibility in law for the
child as well.”
On
the issue of discrimination, Lords 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.
RELEVANT LAW AND PRACTICE
A. Domestic law: the 1990 Act
1. The Warnock Report
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 the philosopher 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). At that time, the
technique of freezing human embryos for future use was in its
infancy, but the Committee noted that it had already occurred and had
resulted in one live birth, and recommended that clinical use of
frozen embryos should continue to be developed under review by the
licensing body (§ 10.3 of the Report). It went on, however, to
recognise the potential problems arising from the possibility of
prolonged storage of human embryos, and recommended that a couple
should be permitted to store embryos for their own future use for a
maximum of ten years, after which time the right of use or disposal
should pass to the storage authority (§ 10.10). It further
recommended that where, as a result, for example, of marital
breakdown, a couple failed to agree how the shared embryo should be
used, the right to determine the use or disposal of the embryo should
pass to the storage authority (§ 10.13). Consistent with its
view that there should be no right of ownership in a human embryo (§
10.11), the Committee did not consider that one party to the
disagreement should be able to require use of the embryo against the
wishes of the other.
2. Consultation and the adoption of legislation
The
Warnock Committee's recommendations, so far as they related to IVF
treatment, were set out in a Green (consultation) Paper issued for
public consultation. It was noted in the Green Paper (at § 35)
that few comments had been received about the Committee's
recommendation that the storage authority should assume the rights of
use or disposal of an embryo where there was no agreement between the
couple, and stressed that although this situation was unlikely to
arise very often, it was important that there should be a “clear
basis” for its resolution.
After
receipt of representations from interested parties, the proposals on
IVF were included in a White Paper (report), Human Fertilisation
and Embryology: A Framework for Legislation, published in
November 1987 (Cm 259). The White Paper recorded the Warnock
Committee's recommendation that the right of use or disposal of a
frozen embryo should pass to the storage authority in the event of
disagreement between the couple concerned (§§ 50-51), but
continued:
“Broadly, those who believe storage should be
permitted were content with the Warnock recommendations. There were
some, however, who considered that the 'storage authority' should not
have the right of use or disposal unless specifically granted this by
the donors. The Government shares this latter view and has concluded
that the law should be based on the clear principle that the donor's
wishes are paramount during the period in which embryos or gametes
may be stored; and that after the expiry of this period, they may
only be used by the licence holder for other purposes if the donor's
consent has been given to this”.
The
White Paper indicated the Government's decision that the maximum
storage period for embryos should be five years (§ 54). Then, in
a section entitled “Donor's Consent”, it set out the
policy that a donor should have the right to vary or withdraw consent
to the transfer of an embryo to a woman at any time before the embryo
was used:
“55. The complexities connected with storage
underline the importance of ensuring that, when couples embark on IVF
treatment, or when gametes are being donated, the individuals
involved have given their consent to the uses to which their gametes
or embryos will be put.
56. The Bill will provide that gametes or embryos may
only be stored with the signed consent of the donors; and may be used
only by the licence holder responsible for storage for the purposes
specified in that consent (e.g. for therapeutic treatment, [or for
research]). Those giving consent should be provided with information
about the techniques for which their gametes/embryos might be used
and about the legal implications of their decision. As a matter of
good practice, counselling should also be available to them.
57. Donors would have the right to vary or withdraw
their consent before the gametes/embryos were used, but the onus
would be on them to notify any change to the licence holder. A
licence holder receiving notice of such a change will have a duty to
inform any other licence holder to whom he has supplied the donor's
gametes. (This situation might arise, for example, if a sperm bank
supplied sperm to one or more treatment centres.) In the absence of
any notification to the contrary, or notification of death, the
licence holder must assume that the original consent still holds, and
must act accordingly during the storage period. When this ends, he
may only use or dispose of the embryos or gametes in accordance with
the specified wishes of the donors. If these are not clear, the
embryo or gametes should be removed from storage and left to perish.
58. As far as embryos are concerned, these may not be
implanted into another woman, nor used for research, nor destroyed
(prior to the expiry of the storage time limit) in the absence of the
consent of both donors. If there is disagreement between the donors
the licence holder will need to keep the embryo in storage until the
end of the storage period, after which time, if there is still no
agreement, the embryo should be left to perish.”
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 Bill substantially reflected the terms
of the White Paper. The provisions dealing with consent did not prove
controversial during its passage through Parliament.
3. The 1990 Act
In
R. v. Secretary of State for Health ex parte Quintavalle
(on behalf of Pro-Life Alliance) [2003] UKHL 13, Lord Bingham
described the background to and general approach of the 1990 Act as
follows:
“There is no doubting the sensitivity of the
issues. There were those who considered the creation of embryos, and
thus of life, in vitro to be either sacrilegious or ethically
repugnant and wished to ban such activities altogether. There were
others who considered that these new techniques, by offering means of
enabling the infertile to have children and increasing knowledge of
congenital disease, had the potential to improve the human condition,
and this view also did not lack religious and moral arguments to
support it. Nor can one doubt the difficulty of legislating against a
background of fast-moving medical and scientific development. It is
not often that Parliament has to frame legislation apt to apply to
developments at the advanced cutting edge of science.
The solution recommended and embodied in the 1990 Act
was not to ban all creation and subsequent use of live human embryos
produced in vitro but instead, and subject to certain express
prohibitions of which some have been noted above, to permit such
creation and use subject to specified conditions, restrictions and
time limits and subject to the regimes of control .... It is ...
plain that while Parliament outlawed certain grotesque possibilities
(such as placing a live animal embryo in a woman or a live human
embryo in an animal), it otherwise opted for a strict regime of
control. No activity within this field was left unregulated. There
was to be no free for all”.
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).
By
section 14(4) of the Act, “the statutory storage period in
respect of embryos is such period not exceeding five years as the
licence may specify”. This provision was amended by the Human
Fertilisation and Embryology (Statutory Storage Period for Embryos)
Regulations 1996, which came into force on 1 May 1996, and which
provide, inter alia, that where, in the opinion of two medical
practitioners, the woman in whom the embryo may be placed, or, where
she is not one of the persons whose gametes are used to create the
embryo, one of those persons, is, or is likely to become, completely
infertile prematurely, the storage period is extended until that
woman is 55. Where, in the opinion of a single medical practitioner,
the woman in whom the embryo may be placed, or one of the gamete
providers, has or is likely to have significantly impaired fertility
or has a significant genetic defect, the storage period is extended
to 10 years, or until that woman is 55, whichever period is the
shorter.
Both
of the persons whose gametes are used to create the embryos are
required to confirm in writing that they do not object to extended
storage for the purposes of future treatment. The woman in whom any
such embryo may be placed must be under 50 when storage commences.
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
“consents to use gametes or embryos”, shall be complied
with. The High Court and Court of Appeal held, in the proceedings
brought by the applicant (see paragraphs 20-27 above) that, as a
matter of the construction of Schedule 3, “the embryo is only
used once transferred to the woman”.
Schedule
3 provides:
“Consents to use of gametes or embryos
Consent
1. A consent under this Schedule must be given in
writing and, in this Schedule, 'effective consent' means a consent
under this Schedule which has not been withdrawn.
2.—(1) A consent to the use of any embryo must
specify one or more of the following purposes—
(a) use in providing treatment services to the person
giving consent, or that person and another specified person together,
(b) use in providing treatment services to persons not
including the person giving consent, or
(c) use for the purposes of any project of research,
and may specify conditions subject to which the embryo
may be so used.
(2) A consent to the storage of any gametes or any
embryo must—
(a) specify the maximum period of storage (if less than
the statutory storage period), and
(b) state what is to be done with the gametes or embryo
if the person who gave the consent dies or is unable because of
incapacity to vary the terms of the consent or to revoke it,
and may specify conditions subject to which the gametes
or embryo may remain in storage.
(3) A consent under this Schedule must provide for such
other matters as the Authority may specify in directions.
(4) A consent under this Schedule may apply—
(a) to the use or storage of a particular embryo, or
(b) in the case of a person providing gametes, to the
use or storage of any embryo whose creation may be brought about
using those gametes,
and in the paragraph (b) case the terms of the consent
may be varied, or the consent may be withdrawn, in accordance with
this Schedule either generally or in relation to a particular embryo
or particular embryos.
Procedure for giving consent
3.—(1) Before a person gives consent under this
Schedule—
(a) he must be given a suitable opportunity to receive
proper counselling about the implications of taking the proposed
steps, and
(b) he must be provided with such relevant information
as is proper.
(2) Before a person gives consent under this Schedule
he must be informed of the effect of paragraph 4 below.
Variation and withdrawal of consent
4.—(1) The terms of any consent under this
Schedule may from time to time be varied, and the consent may be
withdrawn, by notice given by the person who gave the consent to the
person keeping the gametes or embryo to which the consent is
relevant.
(2) The terms of any consent to the use of any embryo
cannot be varied, and such consent cannot be withdrawn, once the
embryo has been used—
(a) in providing treatment services, or
(b) for the purposes of any project of research.
Use of gametes for treatment of others
5.—(1) A person's gametes must not be used for
the purposes of treatment services unless there is an effective
consent by that person to their being so used and they are used in
accordance with the terms of the consent.
(2) A person's gametes must not be received for use for
those purposes unless there is an effective consent by that person to
their being so used.
(3) This paragraph does not apply to the use of a
person's gametes for the purpose of that person, or that person and
another together, receiving treatment services.
In vitro fertilisation and subsequent use of embryo
6.—(1) A person's gametes must not be used to
bring about the creation of any embryo in vitro unless there
is an effective consent by that person to any embryo the creation of
which may be brought about with the use of those gametes being used
for one or more of the purposes mentioned in paragraph 2(1) above.
(2) An embryo the creation of which was brought about
in vitro must not be received by any person unless there is an
effective consent by each person whose gametes were used to bring
about the creation of the embryo to the use for one or more of the
purposes mentioned in paragraph 2(1) above of the embryo.
(3) An embryo the creation of which was brought about
in vitro must not be used for any purpose unless there is an
effective consent by each person whose gametes were used to bring
about the creation of the embryo to the use for that purpose of the
embryo and the embryo is used in accordance with those consents.
(4) Any consent required by this paragraph is in
addition to any consent that may be required by paragraph 5 above.
Embryos obtained by lavage, etc.
...
Storage of gametes and embryos
8.—(1) A person's gametes must not be kept in
storage unless there is an effective consent by that person to their
storage and they are stored in accordance with the consent.
(2) An embryo the creation of which was brought about
in vitro must not be kept in storage unless there is an
effective consent, by each person whose gametes were used to bring
about the creation of the embryo, to the storage of the embryo and
the embryo is stored in accordance with those consents.
(3) An embryo taken from a woman must not be kept in
storage unless there is an effective consent by her to its storage
and it is stored in accordance with the consent.”
The
material effect of Schedule 3 was summarised in the judgment of Lords
Justices Thorpe and Sedley (see paragraph 25 above) as follows:
“(i) Those contemplating the storage and/or use of
embryos created from their gametes must first be offered counselling;
(ii) they must specifically be informed of the circumstances in which
consent to the storage or use of an embryo may be varied or
withdrawn; (iii) consent given to the use of an embryo must specify
whether the embryo is to be used to provide treatment services to the
person giving consent, or to that person together with another, or to
persons not including the person giving consent; (iv) an embryo may
only be stored while there is effective consent to its storage from
both gamete providers, and in accordance with the terms of the
consent; (v) an embryo may only be used while there is an effective
consent to its use from both gamete providers, and in accordance with
the terms of that consent; (vi) consent to the storage of an embryo
can be varied or withdrawn by either party whose gametes were used to
create the embryo at any time; (vii) consent to the use of an embryo
cannot be varied or withdrawn once the embryo has been used in
providing treatment services.”
B. The position within the Council of Europe and in certain other
countries
1. The Member States of the Council of Europe
On
the basis of the material available to the Court, including the
“Medically Assisted Procreation and the Protection of the Human
Embryo Study on the Solution in 39 States” (Council of Europe,
1998) and the replies by the member States of the Council of Europe
to the Steering Committee on Bioethics' “Questionnaire on
Access to Medically Assisted Procreation” (Council of Europe,
2005), it would appear that IVF treatment is regulated by primary or
secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia,
Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland,
Italy, Latvia, the Netherlands, Norway, the Russian Federation,
Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United
Kingdom; while in Belgium, the Czech Republic, Finland, Ireland,
Malta, Lithuania, Poland, Serbia and Slovakia such treatment is
governed by clinical practice, professional guidelines, royal or
administrative decree or general constitutional principles.
The
storage of embryos, for varying lengths of time, appears to be
permitted in all the above States where IVF is regulated by primary
or secondary legislation, except Germany and Switzerland, where in
one cycle of treatment no more than three embryos may be created
which are, in principle, to be implanted together immediately, and
Italy, where the law permits the freezing of embryos only on
exceptional, unforeseen medical grounds.
In
Denmark, France, Greece, the Netherlands and Switzerland, the right
of either party freely to withdraw his or her consent at any stage up
to the moment of implantation of the embryo in the woman is expressly
provided for in primary legislation. It appears that, as a matter of
law or practice, in Belgium, Finland and Iceland there is a similar
freedom for either gamete provider to withdraw consent before
implantation.
A
number of countries have, however, regulated the consent issue
differently. In Hungary, for example, in the absence of a specific
contrary agreement by the couple, the woman is entitled to proceed
with the treatment notwithstanding the death of her partner or the
divorce of the couple. In Austria and Estonia the man's consent can
be revoked only up to the point of fertilisation, beyond which it is
the woman alone who decides if and when to proceed. In Spain, the
man's right to revoke his consent is recognised only where he is
married to and living with the woman. In Germany and Italy, neither
party can normally withdraw consent after the eggs have been
fertilised. In Iceland, the embryos must be destroyed if the gamete
providers separate or divorce before the expiry of the maximum
storage period.
2. The
United States of America
In
addition, the parties referred the Court to case-law from the United
States and Israel. The field of medically assisted reproduction is
not regulated at federal level in the United States and few States
have introduced laws concerning the subsequent withdrawal of consent
by one party. It has, therefore, been left to the courts to determine
how the conflict between the parties should be resolved and there are
a number of judgments by State Supreme Courts regarding the disposal
of embryos created through IVF.
In
Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme
Court of Tennessee held in 1992:
“...disputes involving the disposition of
pre-embryos produced by in vitro fertilization should be
resolved, first, by looking to the preferences of the progenitors. If
their wishes cannot be ascertained, or if there is dispute, then
their prior agreement concerning disposition should be carried out.
If no prior agreement exists, then the relative interests of the
parties in using or not using the pre-embryos must be weighed.
Ordinarily, the party wishing to avoid procreation should prevail,
assuming that the other party has a reasonable possibility of
achieving parenthood by means other than use of the pre-embryos in
question. If no other reasonable alternatives exist, then the
argument in favor of using the pre-embryos to achieve pregnancy
should be considered. However, if the party seeking control of the
pre-embryos intends merely to donate them to another couple, the
objecting party obviously has the greater interest and should
prevail.
But the rule does not contemplate the creation of an
automatic veto.”
In
Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an
agreement with the clinic which stipulated that, “in the event
that we ... are unable to make a decision regarding the disposition
of our frozen pre-zygotes”, the embryos could be used for
research. When the couple separated, Mrs Kass sought to overturn
the agreement and proceed to implantation. Although she prevailed at
first instance (the court reasoning that just as a woman has
exclusive control over her reproduction so should she have the final
say in the area of IVF), the New York Court of Appeal decided that
the existing agreement was sufficiently clear and should be honoured.
In
A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there
was again a previous written agreement, according to which, in the
event of separation, the embryos were to be given to the wife, who
now wished to continue with the treatment, contrary to the wishes of
the husband. However, the Supreme Court of Massachusetts considered
that the arrangement should not be enforced because, inter alia,
as a matter of public policy “forced procreation is not an area
amenable to judicial enforcement”. Rather, “freedom
of personal choice in matters of marriage and family life”
should prevail.
This
judgment was cited with approval by the Supreme Court of New Jersey,
in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who
sought the destruction of the embryos while the husband wanted them
either to be donated to another couple or preserved for
use by him with a future partner. Although constitutional arguments
were advanced on behalf of the wife, the court declined to approach
the matter in this way, reasoning that it was in any event not sure
that enforcing the alleged private contract would violate her rights.
Instead, having taken into account the fact that the father was not
infertile, the court subscribed to the view taken in the A.Z.
case regarding public policy and ordered that the wife's wishes be
observed.
Finally,
in Litowitz v. Litowitz, (48 P. 3d 261, 271) the woman, who
had had children before undergoing a hysterectomy, wished to use
embryos created with her ex-husband's sperm and donor eggs for
implantation in a surrogate mother. The ex-husband, however, wished
the embryos to be donated to another couple. At first instance and on
appeal the husband's view prevailed, but in 2002 the Supreme Court of
Washington decided by a majority to adopt a contractual analysis and
to honour the couple's agreement with the clinic not to store the
embryos for more than five years.
3. Israel
In
Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless
Israeli couple decided to undergo IVF and then to contract with a
surrogate in California to bear their child because the wife would
not be able to carry the foetus to term. The couple signed an
agreement with the surrogate, but not with the IVF clinic regarding
the disposal of the embryos in the event of their separation. The
wife had her last eleven eggs extracted and fertilised with her
husband's sperm. The couple then separated, before the embryos could
be implanted in the surrogate, and the husband, who had gone on to
have children with another woman, opposed the use of the embryos.
The
District Court found in favour of the wife, holding that the husband
could no more withdraw his agreement to have a child than a man who
fertilises his wife's egg through sexual intercourse. A five-judge
panel of the Supreme Court reversed this decision, upholding the
man's fundamental right not to be forced to be a parent. The Supreme
Court reheard the case as a panel of eleven judges and decided, seven
to four, in favour of the wife. Each judge wrote a separate opinion.
The judges in the majority found that the woman's interests and in
particular her lack of alternatives to achieve genetic parenthood
outweighed those of the man. Three of the minority judges, including
the Chief Justice, reached the opposite conclusion, emphasising that
the wife had known that her husband's consent would be required at
every stage and that the agreement could not be enforced after the
couple had become separated. The fourth of the dissenters held that
the man's consent was required before the obligation of parenthood
could be imposed on him.
C. Relevant international texts
The
General Rule stated in the Article 5 of the Council of Europe
Convention on Human Rights and Biomedicine States as follows:
“An intervention in the health field may only be
carried out after the person concerned has given free and informed
consent to it.
This person shall beforehand be given appropriate
information as to the purpose and nature of the intervention as well
as on its consequences and risks.
The person concerned may freely withdraw consent at any
time.”
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:
“1. The techniques of artificial procreation may
be used only if the persons concerned have given their free, informed
consent, explicitly and in writing, in accordance with national
requirements...”
Finally,
Article 6 of the Universal Declaration on Bioethics and Human Rights
provides:
“Article 6 –Consent
a) Any preventive, diagnostic and therapeutic medical
intervention is only to be carried out with the prior, free and
informed consent of the person concerned, based on adequate
information.
The consent should, where appropriate, be express and
may be withdrawn by the person concerned at any time and for any
reason without disadvantage or prejudice.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
In
her original application and in her observations before the Chamber,
the applicant complained that the provisions of English law requiring
the embryos to be destroyed once J withdrew his consent to their
continued storage violated the embryos' right to life, contrary to
Article 2 of the Convention, which reads as follows:
“1. Everyone's right to life shall be
protected by law. ...”
In
its judgment of 7 March 2006, the Chamber recalled that in Vo v.
France [GC], no. 53924/00, § 82, ECHR 2004-VIII, the Grand
Chamber had held that, in the absence of any European consensus on
the scientific and legal definition of the beginning of life, the
issue of when the right to life begins comes within the margin of
appreciation which the Court generally considers that States should
enjoy in this sphere. Under English law, as was made clear by the
domestic courts in the present applicant's case, an embryo does not
have independent rights or interests and cannot claim - or have
claimed on its behalf - a right to life under Article 2. There had
not, accordingly, been a violation of that provision.
The Grand Chamber notes that the applicant has not pursued her
complaint under Article 2 in her written or oral submissions to it.
However, since cases referred to the Grand Chamber embrace all
aspects of the application previously examined by the Chamber (K.
and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001-VII),
it is necessary to consider the issue under Article 2.
The
Grand Chamber, for the reasons given by the Chamber, finds that the
embryos created by the applicant and J do not have a right to life
within the meaning of Article 2, and that there has not, therefore,
been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant contended that the provisions of Schedule 3 to the 1990
Act, which permitted J to withdraw his consent after the
fertilisation of her eggs with his sperm, violated her rights to
respect for private and family life under Article 8 of the
Convention, which states:
“1. Everyone has the right to respect
for his private and family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The Chamber judgment
In
its judgment of 7 March 2006 the Chamber held, in summary, that
Article 8 was applicable, since the notion of “private life”
incorporated the right to respect for both the decisions to become
and not to become a parent. The question which arose under Article 8
was “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”.
Given
that there was no international or European consensus with regard to
the regulation of IVF treatment, the use of embryos created by such
treatment, or the point at which consent to the use of genetic
material provided as part of IVF treatment might be withdrawn; and
since the use of IVF treatment gave rise to sensitive moral and
ethical issues against a background of fast-moving medical and
scientific developments, the margin of appreciation to be afforded to
the respondent State must be a wide one.
The
1990 Act 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. Its policy was to ensure
continuing consent from the commencement of treatment to the point of
implantation in the woman. 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 was
undisputed that it was explained to them both that either was free to
withdraw consent at any time before the resulting embryo was
implanted in the applicant's uterus. As in Pretty
v. the United Kingdom, no. 2346/02, ECHR 2002-III and
Odièvre v. France, no. 42326/98, ECHR 2003-III,
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 sensitive field. Like the national courts, the Chamber
did not find, therefore, that the absence of a power 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 or to exceed the wide margin of
appreciation afforded to the State.
B. The parties' submissions
1. The applicant
The
applicant accepted that there should be a regulatory scheme
determining the use of reproductive medicine, but submitted that it
was neither necessary nor proportionate to permit of no exceptions in
the provision of a veto on the use of embryos to either gamete
provider.
The
female's role in IVF treatment was much more extensive and
emotionally involving than that of the male, who donated his sperm
and had no further active physical part to play in the process. The
female gamete provider, by contrast, donated eggs, from a finite
limited number available to her, after a series of sometimes painful
medical interventions designed to maximise the potential for
harvesting eggs. In the case of a woman with the applicant's medical
history, she would never again have the opportunity to attempt to
create a child using her gametes. Her emotional and physical
investment in the process far surpassed that of the man and justified
the promotion of her Article 8 rights. Instead, the 1990 Act operated
so that the applicant's rights and freedoms in respect of creating a
baby were dependent on J's whim. He was able to embark on the project
of creating embryos with the applicant, offering such assurances as
were necessary to convince her to proceed, and then abandon the
project when he pleased, taking no responsibility for his original
decision to become involved, and under no obligation even to provide
an explanation for his behaviour.
The
impact of the consent rules in the 1990 Act was such that there would
be no way for a woman in the applicant's position to secure her
future prospects of bearing a child, since both a known and an
anonymous sperm donor could, on a whim, withdraw consent to her use
of embryos created with his sperm. 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.
Whether
the role of the State was analysed in terms of a positive obligation
to take reasonable and appropriate measures to secure the
individual's Article 8 rights, or as an interference requiring
justification, it was clear from the case-law that a fair balance had
to be struck between the competing interests. There was no necessity
for legislation which failed to recognise that exceptional
situations, requiring different treatment, might arise. This was a
conflict primarily between the respective rights of two private
individuals, rather than between the State and an individual, and the
proper way to determine a conflict between individuals was by
recourse to a court for judicial assessment of the respective
positions. In the present case, the clinic was ready and willing to
treat the applicant, and should be permitted so to do. The Chamber
had overstated the obligation for which the applicant contended: she
did not go so far as to claim a duty on the part of the State to
ensure that she be permitted to proceed.
A
fair appraisal of the Nachmani case (see paragraph 48 above)
and the case-law from the United States of America (paragraphs 42-47
above) provided support for her argument. Nachmani was
the closest case on its facts to her own, but the applicant's case
was stronger, since she wished to have the embryos implanted in her
own uterus, not that of a surrogate. All the decisions from the
United States appeared either to apply, or at least to recognise, a
test whereby there was a balance of rights and/or interests in the
embryos. Moreover, only one of these cases was decided on the basis
of a conflict between public policy and private rights, and the
case-law therefore supported the applicant's contention that there
was no public interest at stake. As for the position within the
Council of Europe, the applicant pointed out that the Chamber
appeared to have relied on material which was not available to the
parties, although she accepted that there was no consensus in Europe
as to whether, in the general run of cases, the man's consent could
be revoked either at any time before implantation, or only up to the
point of fertilisation. However, the applicant invited the Court to
consider what evidence there was as to how any Council of Europe
State would determine a case with the same facts as the present
dispute. Just how “bright-line” were the rules even
within the four States recorded in the Chamber judgment as permitting
withdrawal of consent at any time up to implantation?
While
the applicant accepted that, since the statutory maximum storage
period had expired by the time of the hearing before the Grand
Chamber, she was no longer the victim of J's direction to the clinic
to remove the embryos from storage, she submitted that it was neither
necessary nor proportionate to give such a power to a single gamete
provider. Human embryos were special: this was the underlying
philosophy of the 1990 Act. Yet the Act permitted only one of the
couple on a whim to destroy the embryos created by both; even a
family pet enjoyed greater protection under the law.
2. The Government
The
Government argued that the Chamber had been incorrect in referring to
J's having withdrawn the consent he had given to the use of his
gametes or to the applicant's having sought to hold him to that
consent. In fact, J had never consented to the treatment which the
applicant wished to receive, and his consent had always been limited
to treatment of the applicant together with him; in practical terms,
the consent was predicated on their relationship continuing. When the
relationship broke down and the applicant wished to continue with the
treatment by herself, the consent which J had given did not extend to
the new situation.
The
Government contended that the 1990 Act served to promote a number of
inter-related policies and interests - the woman's right to
self-determination in respect of pregnancy once the embryo was
implanted; the primacy of freely given and informed consent to
medical intervention; the interests of any child who might be born as
a result of IVF treatment; the equality of treatment between the
parties; the promotion of the efficacy and use of IVF and related
techniques; and clarity and certainty in relations between partners.
States
were entitled to a broad margin of appreciation in this field, given
the complexity of the moral and ethical issues to which IVF treatment
gave rise, on which opinions within a democratic society might
reasonably differ widely. There was no international or European
consensus as to the point at which a sperm donor should be allowed
effectively to withdraw his consent and prevent the use of his
genetic material. Moreover, a wide margin should be applied since the
national authorities were required to strike a balance between the
competing Convention interests of two individuals, each of whom was
entitled to respect for private life.
The
fact that the law allowing either party to withdraw his or her
consent up until the point of implantation of the embryo did not
permit of exception (a “bright line” rule), did not in
itself render it disproportionate. If exceptions were permitted, the
principle which Parliament legitimately sought to achieve, of
ensuring bilateral consent to implantation, would not be achieved.
Complexity and arbitrariness would result, and the domestic
authorities would be required to balance individuals' irreconcilable
interests, as in the present case.
B. The Court's assessment
1. The nature of the rights at issue under Article 8
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 Grand Chamber agrees with the Chamber that “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
(see Pretty, cited above, § 61), incorporates the right
to respect for both the decisions to become and not to become a
parent.
It
must be noted, however, that the applicant does not complain that she
is in any way prevented from becoming a mother in a social, legal, or
even physical sense, since there is no rule of domestic law or
practice to stop her from adopting a child or even giving birth to a
child originally created in vitro from donated gametes. The
applicant's complaint is, more precisely, that the consent provisions
of the 1990 Act prevent her from using the embryos she and J created
together, and thus, given her particular circumstances, from ever
having a child to whom she is genetically related. The Grand Chamber
considers that this more limited issue, concerning the right to
respect for the decision to become a parent in the genetic sense,
also falls within the scope of Article 8.
The
dilemma central to the present case is that it involves a conflict
between the Article 8 rights of two private individuals: the
applicant and J. Moreover, each person's interest is entirely
irreconcilable with the other's, since if the applicant is permitted
to use the embryos, J will be forced to become a father, whereas if
J's refusal or withdrawal of consent is upheld, the applicant will be
denied the opportunity of becoming a genetic parent. In the difficult
circumstances of this case, whatever solution the national
authorities might adopt would result in the interests of one or the
other parties to the IVF treatment being wholly frustrated (cf.
Odièvre, cited above, § 44).
In
addition, the Grand Chamber, like the Chamber, accepts the
Government's submission (see paragraph 68 above) that the case does
not involve simply a conflict between individuals; the legislation in
question also served a number of wider, public interests, in
upholding the principle of the primacy of consent and promoting legal
clarity and certainty, for example (compare, again, Odièvre,
§ 45). The extent to which it was permissible under Article
8 for the State to give weight to these considerations is examined
below.
2. Whether the case involves a positive obligation or an
interference
Although
the object of Article 8 is essentially that of protecting the
individual against arbitrary interference by the public authorities,
it does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect
for private life. These obligations may involve the adoption of
measures designed to secure respect for private life even in the
sphere of the relations of individuals between themselves. The
boundaries between the State's positive and negative obligations
under Article 8 do not lend themselves to precise definition. The
applicable principles are nonetheless similar. In particular, in both
instances regard must be had to the fair balance which has to be
struck between the competing interests; and in both contexts the
State enjoys a certain margin of appreciation (Odièvre,
cited above, § 40).
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, because the
relevant provisions of the 1990 Act prevented the clinic from
treating her once J had informed it that he did not consent. The
Grand Chamber, however, like the Chamber, considers that it is more
appropriate to analyse the case as one concerning positive
obligations, the principal issue, as in the Odièvre
case cited above, being whether the legislative provisions as applied
in the present case struck a fair balance between the competing
public and private interests involved. In this regard, the Grand
Chamber accepts the findings of the domestic courts that J had never
consented to the applicant using the jointly created embryos alone -
his consent being limited to undergoing “treatment together”
with the applicant (see paragraph 24 above). The Court does not find
it of importance to the determination of the Convention issue,
whether in these circumstances J is to be regarded as having
“refused” rather than “withdrawn” his consent
to the implantation of the embryos, as the Government argue
(paragraph 67 above).
3. The margin of appreciation
A
number of factors must be taken into account when determining the
breadth of the margin of appreciation to be
enjoyed by the State in any case under Article 8. Where a
particularly important facet of an individual's existence or identity
is at stake, the margin allowed to the State will be restricted (see,
for example, X. and Y. v. the Netherlands, judgment of
26 March 1985, Series A no. 91, §§ 24 and 27; Dudgeon
v. the United Kingdom, judgment of 22 October 1981, Series A no.
45; Christine Goodwin v. the United Kingdom [GC], no.
28957/95, § 90, ECHR 2002-VI; cf. Pretty, cited above, §
71). Where, however, there is no consensus within the Member States
of the Council of Europe, either as to the relative importance of the
interest at stake or as to the best means of protecting it,
particularly where the case raises sensitive moral or ethical issues,
the margin will be wider (X., Y. and Z. v. the United Kingdom,
judgment of 22 April 1997, Reports of Judgments and Decisions
1997-II, § 44; Frette v. France, no. 36515/97, §
41, ECHR 2002-I; Christine Goodwin, cited above, § 85;
see also, mutatis mutandis, Vo, cited above, §
82). There will also usually be a wide margin if the State is
required to strike a balance between competing private and public
interests or Convention rights (see Odièvre, §§
44-49 and Frette § 42).
The issues raised by the present case are undoubtedly
of a morally and ethically delicate nature, and in this connection
the Court recalls the words of Lord Bingham in Quintavalle (see
paragraph 34 above).
In addition, while the Court is mindful of the
applicant's submission to treat the comparative law data with
caution, it is at least clear, and the applicant does not contend
otherwise, that there is no uniform European approach in this field.
Certain States have enacted primary or secondary legislation to
control the use of IVF treatment, whereas in others this is a matter
left to medical practice and guidelines. While the United Kingdom is
not alone in permitting storage of embryos and in providing both
gamete providers with the power freely and effectively to withdraw
consent up until the moment of implantation, different rules and
practices are applied elsewhere in Europe. It cannot be said that
there is any consensus as to the stage in IVF treatment when the
gamete providers' consent becomes irrevocable (see paragraphs 39-42
above).
While
the applicant contends that her greater physical and emotional
expenditure during the IVF process, and her subsequent infertility,
entail that her Article 8 rights should take precedence over J's, it
does not appear to the Court that there is any clear consensus on
this point either. The Court of Appeal commented on the difficulty of
comparing the effect on J of being forced to become the father of the
applicant's child and that on the applicant of being denied the
chance to have genetically-related offspring (see paragraphs 25-26
above), and this difficulty is also reflected in the range of views
expressed by the two panels of the Israeli Supreme Court in Nachmani
and in the United States case-law (see paragraphs 43-49 above).
In
conclusion, therefore, 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 X., Y. and Z, cited above, § 44).
The
Grand Chamber, like the Chamber, considers that the above margin must
in principle extend both to the State's decision whether or not to
enact legislation governing the use of IVF treatment and, once having
intervened, to the detailed rules it lays down in order to achieve a
balance between the competing public and private interests.
4. Compliance with Article 8
It
remains for the Court to determine whether, in the special
circumstances of the case, the application of a law which permitted J
effectively to withdraw or withhold his consent to the implantation
in the applicant's uterus of the embryos created jointly by them
struck a fair balance between the competing interests.
The
fact that it is now technically possible to keep human embryos in
frozen storage gives rise to an essential difference between IVF and
fertilisation through sexual intercourse, namely the possibility of
allowing a lapse of time, which may be substantial, to intervene
between creation of the embryo and its implantation in the uterus.
The Court considers that it is legitimate – and indeed
desirable - for a State to set up a legal scheme which takes this
possibility of delay into account. In the United Kingdom,
the solution adopted in the 1990 Act was to permit storage of embryos
for a maximum of five years. In 1996 this period was extended by
secondary legislation to ten or more years where one of the gamete
providers or the prospective mother is, or is likely to become,
prematurely infertile, although storage can never continue after the
woman being treated reaches the age of 55 (see paragraph 36
above).
These
provisions are complemented by a requirement on the clinic providing
the treatment to obtain a prior written consent from each gamete
provider, specifying, inter alia, the type of treatment for
which the embryo is to be used (Schedule 3, paragraph 2(1) to the
1990 Act), the maximum period of storage, and what is to be done with
it in the event of the gamete provider's death or incapacity
(Schedule 3, paragraph 2(2)). Moreover, paragraph 4 of Schedule 3
provides that “the terms of any consent under this Schedule may
from time to time be varied, and the consent may be withdrawn, by
notice given by the person who gave the consent to the person keeping
the gametes or embryo ...” up until the point that the embryo
has been “used” (that is, implanted in the uterus; see
paragraph 37 above). Other States, with different religious,
social and political cultures, have adopted different solutions to
the technical possibility of delay between fertilisation and
implantation (see paragraphs 39-42 above). For the reasons set out
above (paragraphs 77-82), the decision as to the principles and
policies to be applied in this sensitive field must primarily be for
each State to determine.
In
this connection the Grand Chamber agrees with the Chamber that it is
relevant that the 1990 Act 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, and
the fruit of much reflection, consultation and debate (see, mutatis
mutandis, Hatton and others v. the United Kingdom [GC],
no. 36022/97, § 128, ECHR 2003-VIII).
The
potential problems arising from scientific progress in storing human
embryos were addressed as early as the Warnock Committee's Report of
1984, which recommended that a couple should be
permitted to store embryos for their own future use for a maximum of
ten years, after which time the right of use or disposal should pass
to the storage authority. In the event that a couple failed to agree
how the shared embryo should be used, the right to determine the use
or disposal of the embryo should pass to the “storage
authority”. The subsequent Green Paper specifically
asked interested members of the public what should happen where there
was no agreement between a couple as to the use or disposal of an
embryo, and the 1987 White Paper noted that those respondents who
agreed that storage should be permitted were broadly in favour of the
Committee's recommendations, but that some rejected the idea that the
“storage authority” should be empowered to decide the
embryo's fate in the event of conflict between the donors. The
Government therefore proposed “that the law should be
based on the clear principle that the donor's wishes are paramount
during the period in which embryos or gametes may be stored; and that
after the expiry of this period, they may only be used by the licence
holder for other purposes if the donor's consent has been given to
this”. The White Paper also set out the detail of the
proposals on consent, in a form which, after further consultation,
was adopted by the legislature in Schedule 3 to the 1990 Act
(see paragraphs 29-33 above).
That
Schedule places a legal obligation on any clinic carrying out IVF
treatment to explain the consent provisions to a person embarking on
such treatment and to obtain his or her consent in writing (see
paragraph 37 above). It is undisputed that this occurred in the
present case, and that the applicant and J both signed the consent
forms required by the law. While the pressing nature of the
applicant's medical condition required her to make a decision quickly
and under extreme stress, she knew, when consenting to have all her
eggs fertilised with J's sperm, that these would be the last eggs
available to her, that it would be some time before her cancer
treatment was completed and any embryos could be implanted, and that,
as a matter of law, J would be free to withdraw consent to
implantation at any moment.
While
the applicant criticised the national rules on consent for the fact
that they could not be disapplied in any circumstances, the Court
does not find that the absolute nature of the law is, in itself,
necessarily inconsistent with Article 8 (see also the Pretty
and Odièvre cases cited in paragraph 60 above). Respect
for human dignity and free will, as well as a desire to ensure a fair
balance between the parties to IVF treatment, underlay the
legislature's decision to enact provisions permitting of no exception
to ensure that every person donating gametes for the purpose of IVF
treatment would know in advance that no use could be made of his or
her genetic material without his or her continuing consent. In
addition to the principle at stake, the absolute nature of the rule
served to promote legal certainty and to avoid the problems of
arbitrariness and inconsistency inherent in weighing, on a case by
case basis, what the Court of Appeal described as “entirely
incommensurable” interests (see paragraphs 25-26 above). In
the Court's view, these general interests pursued by the legislation
are legitimate and consistent with Article 8.
As
regards the balance struck between the conflicting Article 8 rights
of the parties to the IVF treatment, the Grand Chamber, in common
with every other court which has examined this case, has great
sympathy for the applicant, who clearly desires a genetically related
child above all else. However, given the above considerations,
including the lack of any European consensus on this point (see
paragraph 79 above), it does not consider that the applicant's right
to respect for the decision to become a parent in the genetic sense
should be accorded greater weight than J's right to respect for his
decision not to have a genetically-related child with her.
The
Court accepts that it would have been possible for Parliament to
regulate the situation differently. However, as the Chamber observed,
the central question under Article 8 is not whether different rules
might have been adopted by the legislature, 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.
The
Grand Chamber considers that, given the lack of European consensus on
this point, the fact that the domestic rules were clear and brought
to the attention of the applicant and that they struck a fair balance
between the competing interests, there has been no violation of
Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
In
her application and in the proceedings before the Chamber, the
applicant complained of discrimination contrary to Article 14 taken
in conjunction with Article 8, reasoning that a woman who was able to
conceive without assistance was subject to no control or influence
over how the embryos developed from the moment of fertilisation,
whereas a woman such as herself who could conceive only with IVF was,
under the 1990 Act, subject to the will of the sperm donor.
In
her observations to the Grand Chamber, however, the applicant
submitted that her complaints under Articles 8 and 14 were
inextricably linked, and that if the Court found that the impugned
provision of domestic law was proportionate under Article 8, it
should also find the scheme reasonably and objectively justified
under Article 14.
The
Grand Chamber agrees with the Chamber and the parties that it is not
required to decide in the present case whether the applicant could
properly complain of a difference of treatment as compared to another
woman in an analogous position, because the reasons given for finding
that there was no violation of Article 8 also afford a reasonable and
objective justification under Article 14 (see, mutatis
mutandis, Pretty § 89).
Consequently,
there has been no violation of Article 14 of the Convention.
FOR THESE REASONS, THE COURT
Holds, unanimously, that there has been no
violation of Article 2 of the Convention;
Holds, by thirteen votes to four, that there has
been no violation of Article 8 of the Convention;
Holds, by thirteen votes to four, that there has
been no violation of Article 14 of the Convention, taken in
conjunction with Article 8.
Done in English and French, and delivered on 10 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Erik Fribergh Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr Türmen,
Mrs Tsatsa Nikolovska, Mr Spielmann and Mrs Ziemele is
annexed to this judgment.
C.L.R.
E.F.
JOINT DISSENTING OPINION OF JUDGES TÜRMEN,
TSATSA-NIKOLOVSKA, SPIELMANN AND ZIEMELE
We
voted against the finding that there has been no violation of
Article 8 of the Convention and no violation of Article 14
of the Convention, taken in conjunction with Article 8.
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).
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.
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, once 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 case. 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 ethically 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”.
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
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.
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 fertilized 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
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.
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 emphasize 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 moment” (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.
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.
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.
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 would like to say the
following:
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, Wall J (paragraph 23). However, even this comparison
does not illustrate the whole complexity of the instant case. It
is recognised by those international institutions with a specific
mandate 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 which 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 Thlimmenos v Greece, recognising that different
situations require different treatment.
We see the circumstances of the applicant in this light not least
because of the excessive physical and emotional burden and effects
caused by her condition, and it is on this basis that we voted for a
violation of Article 14 in conjunction with Article 8.
