CASE OF EVANS v. THE UNITED KINGDOM
No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8;Indication under Rule 39 continued until judgment becomes final or until further order
Josep Casadevall;Nicolas Bratza
6. 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 14 below), are as follows. 7. On 12 July 2000 the applicant and her partner, J, commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been married and had been referred for fertility treatment at the clinic with her husband in 1995, but had not pursued it because of the breakdown of her marriage. 8. 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. 9. The consultation of 10 October 2000 lasted approximately an hour in total. A nurse explained that the applicant and J would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraphs 27-30 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. Wall J found that J gave these assurances in good faith, because at that time he loved the applicant, genuinely wanted a child with her and wanted to support her during a very difficult period (see also paragraph 15 below). 10. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 29 below). Immediately beneath the title to the form appeared the following words: “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.” 11. 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. 12. In May 2002 the relationship broke up. The future of the embryos was discussed between the parties. On 4 July 2002 J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed. 13. The clinic notified the applicant of J’s withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them, pursuant to section 8(2) of Schedule 3 to the 1990 Act (see paragraph 29 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings. 14. 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. 15. He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance. He rejected the applicant’s submission that J was estopped from withdrawing his consent, finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue. It did not, however, and in the changed circumstances of separation, it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment. 16. As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He did, however, accept that the relevant provisions of the 1990 Act did interfere with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child (see further paragraphs 26-27 below). He considered it entirely appropriate that the law required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman. 17. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 29 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man: “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.” 18. The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd, [2004] EWCA Civ 727). The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos. The court rejected the applicant’s argument that J had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J, and the other witnesses (see paragraphs 14-15 above). The Court of Appeal was also informed by J’s counsel that J’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection. 19. While there was an interference with the private lives of the parties, Lord Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons: “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.” 20. 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.” Arden LJ noted that neither the Warnock Report nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment (see paragraphs 23-27 below). However, she went on to find: “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.” 21. On the issue of discrimination, Lord Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests. 22. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment. 23. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.” The Committee reported in July 1984 (Cmnd 9314) and its recommendations, so far as they related to IVF treatment, were set out in a Green Paper issued for public consultation. After receipt of representations from interested parties, they were included in a White Paper, Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper noted “the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development”. Nonetheless, following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. 24. The solution recommended and embodied in the 1990 Act was to permit, subject to certain express prohibitions, the creation and subsequent use of live human embryos produced in vitro, subject to a number of conditions, restrictions and time limits. 25. Thus, by section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3 (1) is an offence (created by section 41(2)(a) of the Act). 26. One of the policy objectives of the 1990 Act was to promote the welfare of the child. Thus, section 13(5) provides: “A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.” 27. The second important policy objective of the 1990 Act was to ensure that both gamete providers (i.e. the providers of the sperm and eggs) continued to consent from the commencement of the treatment until the implantation of the embryos. The primacy of continuing bilateral consent had been central to the Warnock Committee’s recommendations about the regulation of IVF treatment and although neither the Warnock Report nor the Green Paper had discussed what was to happen if the parties became estranged during treatment, the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used. 28. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with consent, shall be complied with. 29. 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.” 30. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley 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.” 31. 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), the situation in the various Member States of the Council of Europe would appear to be as follows. In Denmark, France, Greece 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 legislation; in the Netherlands, this rule is included in secondary legislation. In Belgium, Germany and Finland clinical practice appears to conform to this model, and it further appears that, as a matter of law or practice, in Iceland, Sweden and Turkey the male donor enjoys a similar power of veto to that afforded by the United Kingdom. 32. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in recognition of the fact that medically-assisted reproduction represents a far heavier burden for the woman than for the man, and absent any prior written agreement to the contrary, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria, Estonia and Italy 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. 33. The field of medically assisted reproduction is not regulated at federal level in the United States, and since few States have introduced laws concerning the subsequent withdrawal of consent by one party, it has been left to the courts to determine how the conflict between the parties should be resolved. There is, therefore, a series of judgments by State Supreme Courts regarding the disposal of embryos created through IVF. 34. 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.” 35. 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. 36. 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. 37. 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 preserved for use 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, the court subscribed to the view taken in the Z. case regarding public policy and ordered that the wife’s wishes be observed. 38. In the final case in this series, Litowitz v. Litowitz, (48 P. 3d 261, 271), the Supreme Court of Washington decided in 2002 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. 39. 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. 40. 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.” 41. 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...” 42. 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.”