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European Observer on fundamental right's respect

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Case Law 6339/ 05 (10/04/2007)

Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 04/10/2007

Subject: On 12 July 2000 Ms Evans and her partner J, started fertility treatment at the Bath Assisted Conception Clinic. On 10 October 2000, during an appointment at the clinic, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. On 12 November 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and, on 26 November 2001, Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus. In May 2002 the relationship between the applicant and J ended and subsequently, in accordance with the 1990 Act, he informed the clinic that he did not consent to Ms Evans using the embryos alone or their continued storage. The applicant brought proceedings before the High Court seeking, among other things, an injunction to require J. to give his consent. Her claim was refused on 1 October 2003 and on1 October 2004, the Court of Appeal upheld the High Court’s judgment. On 26 January 2005 the clinic informed the applicant that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005. On 27 February 2005 the European Court of Human Rights, to whom the applicant had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed. The applicant, for whom the embryos represent her only chance of bearing a child to which she is genetically related, has undergone successful treatment for her pre-cancerous condition and is medically fit to continue with implantation of the embryos. It was understood that the  clinic was willing to treat her, subject to J’s consent. The applicant complains that requiring the father’s consent for the continued storage and implantation of the fertilised eggs is in breach of her rights under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights and the rights of the embryos, under Article 2 (right to life) The Court held that there had been no violation of articles 2, 8 and 14. Article 2 The Grand Chamber, for the reasons given by the Chamber (see judgment of 7 Mars 2006), found that the embryos created by the applicant and J did not have a right to life within the meaning of Article 2, and that there had not, therefore, been a violation of Article 2. Article 8 The Grand Chamber noted that the applicant did not complain that she was in any way prevented from becoming a mother in a social, legal, or even physical sense, since there was 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 dilemma central to the case was that it involved a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person’s interest was entirely irreconcilable with the other’s. In addition, the Grand Chamber, like the Chamber, accepted that the case did not involve simply a conflict between individuals; that 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. The principal issue was whether the legislative provisions as applied in the case struck a fair balance between the competing public and private interests involved. In that regard, the Grand Chamber accepted the findings of the domestic courts that J had never consented to the applicant using the jointly created embryos alone. The issues raised by the present case were undoubtedly of a morally and ethically delicate nature. In addition, there was no uniform European approach in the field. While the applicant contended that her greater physical and emotional expenditure during the IVF process, and her subsequent infertility, entailed that her Article 8 rights should take precedence over J’s, it did not appear to the Court that there was any clear consensus on this point either. The Court further noted that the fact that it had become technically possible to keep human embryos in frozen storage gave rise to an essential difference between IVF and fertilisation through sexual intercourse, namely the possibility of allowing a lapse of time, which might be substantial, to intervene between the creation of the embryo and its implantation in the uterus. It therefore considered it to be legitimate and desirable for a State to set up a legal scheme which took that possibility of delay into account. 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 had examined the case, had great sympathy for the applicant, who clearly desired a genetically-related child above all else. However, given the above considerations, including the lack of any European consensus on that point, it did 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. While the applicant criticised the national rules on consent for the fact that they could not be disapplied in any circumstances, the Court did not find that the absolute nature of the law was, in itself, necessarily inconsistent with Article 8.  In the Court’s view, those general interests were legitimate and consistent with Article 8. The Grand Chamber considered that, given the lack of European consensus, 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 had been no violation of Article 8.

Parties: Evans c/ Regno Unito

Classification: Dignity - Art. 2 Right to life - Art. 6 Personal liberty - Art. 7 Privacy - Art. 20 Equality - Art. 21 Non discrimination - Art. 47 Right to an effective remedy before a tribunal