The European Court Of Human Rights Confirms UK Consent Law

The European Court of Human Rights (“ECHR”) has recently made a decision in the case of Natalie Evans v United Kingdom (2007).

Natalie Evans was rendered infertile following ovarian cancer treatment. As a result of this treatment Miss Evans and her former partner, Howard Johnston, began IVF treatment in 2001. Following the breakdown of their relationship, Mr Johnston withdrew his consent for the frozen embryos from the IVF treatment to be used.

At first instance, Miss Evans argued unsuccessfully that Mr Johnston had already consented to the creation, storage and use of the embryos and therefore should not be allowed to change his mind.

The Human Fertilisation Embryology Act 1990 requires that both the man and the woman give consent. It also allows either party to withdraw that consent up to the point where the embryos are implanted.

During the course of the treatment at the IVF clinic both parties had been informed that they would each need to sign a form of consent to the IVF treatment and that, in accordance with the provisions set out by the Act, it would be possible for either of them to withdraw their consent at any time before the embryos were implanted. The couple consented to the treatment and subsequently six embryos were created and placed in storage.

Miss Evans took her case to the Court of Appeal who ruled that she could not use the embryos due to the withdrawal of Mr Johnston’s consent. She failed in her bid to take the case to the House of Lords and therefore appealed to the ECHR. The basis of Miss Evans’ claim to the ECHR was that the provisions of the Human Fertilisation and Embryology Act 1990, which permitted her former partner to withdraw his consent, violated Miss Evans’ rights under the Human Rights Act. In particular she claimed that they violated her rights under Article 8, the right to family life, Article 14, prohibition of discrimination and finally, the embryo’s right to life under Article 2.

The ECHR held that the embryos created did not have a right to life within the meaning of Article 2. The Court confirmed that in the absence of any European consensus on the definition of the beginning of life, member state law applies. Under English law an embryo does not have independent rights or interests and therefore does not have a right to life under Article 2.

In respect of the consent issue, the Court stated that there was no international consensus as to when the consent became irrevocable. Neither was there any consensus that Miss Evans’ rights under Article 8 should take precedence over those of Mr Johnston because of her greater physical and emotional expenditure during the IVF process. The ECHR said that as there was no common ground between the member states they were able to look at individual member state legislation. They therefore carefully examined the 1990 Act which they described as “The combination of an exceptionally detailed examination of social, ethical and legal implications of developments in the field of human fertilisation embryology”. As the Act itself places a legal obligation on any IVF clinic to explain the consent provisions to persons embarking on such treatment and to obtain their informed consent, it was a matter of law that Mr Johnston would be free to withdraw consent to implantation at any moment.

The Court confirmed that the law was not necessarily inconsistent with Article 8 and that the nature of the rules “serve to promote legal certainty and to avoid problems with arbitrariness and inconsistency.” Therefore, Miss Evans’ right to respect of the decision to become a parent in the genetic sense should not be accorded greater weight than Mr Johnston’s right to respect of his decision not to have a genetically related child with her. Accordingly, there had been no breach of Article 8.

As a result of this decision, it is likely that the embryos will now be destroyed.

Although there has been a huge amount of sympathy for Miss Evans, the law as it currently stands has been correctly upheld in what is an area which covers many sensitive, moral and ethical issues alongside rapidly changing medical and scientific developments. The case is an example of the importance of ensuring that appropriate and detailed advice is given to patients and that appropriate consent is obtained. As with any medical treatment, it is imperative that detailed contemporaneous records are made by the medical providers concerned in order that the patients’ understanding is clear and unequivocal from the outset.

Published 26/04/2007.