Evans V Uk Notes

Evans v UK [2006] 43 EHRR 21

ECtHR

Facts

In 2000, E and her partner, J, were informed that E’s ovaries would have to be removed due to pre-cancerous tumours. They were told that, in accordance with HEFA 1990, eggs could first be extracted for IVF” but that either party could withdraw their consent before the embryos were implanted. E asked about freezing unfertilised eggs, but J reassured her that he would father her children. In 2001 six embryos were created and the applicant's ovaries were removed. In 2002 the relationship ended and J withdrew his consent.

Held ECtHR

• The applicant emphasised that, since her ovaries had had to be removed to combat cancer, the embryos created with her eggs and J's sperm represented her only chance to have a child to whom she was biologically related. Through J's actions, her life's overwhelming ambition, to have a child, would be permanently frustrated

  • The State should not allow J to resile from his assurances with impunity. He had compromised his own freedom not to become a parent by agreeing to have the applicant's last eggs fertilised with his sperm

  • It is not disputed between the parties that Art.8 is applicable and that the case concerns the applicant's right to respect for her private life.

    • “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,

      • And this incorporates the right to respect for both the decisions to become and not to become a parent

• However, the court finds that strong policy considerations underlay the decision of the legislature to favour a clear or “bright-line” rule which would serve both to produce legal certainty and to maintain public confidence in the law in a highly sensitive field.

  • As the Court of Appeal observed, to have made the withdrawal of the male donor's consent relevant but not conclusive,

    • or to have granted a power to the clinic, to the court or to another independent authority to override the need for a donor's consent,

      • would not only have given rise to acute problems of evaluation of the weight to be attached to the respective rights of the parties concerned, particularly where their personal circumstances had changed in the period since the outset of the IVF treatment,

        • but would have created “new and even more intractable difficulties of arbitrariness and inconsistency

• The Court is not persuaded by the applicant's argument that the situation of the male and female parties to IVF treatment cannot be equated

  • the Court does not accept that the Art.8 rights of the male donor would necessarily be less worthy of protection than those of the female; nor does it regard it as self-evident that the balance of interests would always tip decisively in favour of the female party

    • like the national courts, the Court does not find that the absence of a power to override a genetic parent's withdrawal of consent, even in the exceptional circumstances of the present case, is such as to upset the fair balance required by Art.8

  • The Court accepts that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the “bright-line” at the point of creation of the embryo. It notes in this regard that this latter solution has been adopted in a number of Member States of the Council of Europe

    • However, the central question in terms of Art.8 of the Convention is not whether a different solution might have been found by...

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