A balancing act - conflicting human rights

This one has made the headlines big-time. The facts are straightforward: Natallie Evans, before undergoing treatment for cancer, underwent IVF treatment using sperm from her then partner, Mr Johnston. Six embryos were frozen, with both the couple’s permission with a view to later starting a family together. As a result of the cancer treatment, Evans was left infertile.

However, Evans and Johnston then split up. Essentially, Mr Johnston withdrew his consent for the embryos to be implanted. The Human Fertilisation and Embryology Act 1990 states that unless both parties consent to storage and use, the embryos must be destroyed. Further, there is a 5 year period of ‘contemplation’ after which a decision must be made as to what should be done with the embryos: implantation or destruction.

The UK is by no means the only E.U. country to allow embryos to be frozen while permitting both the potential mother and father to withdraw consent right up to implantation. However, there is no European consensus about the stage in IVF treatment when the sperm donor's consent becomes irrevocable. Indeed, this formed part of the reason as to why the European Court did not find in Evans' favour.

The two conflicting human rights here are obviously those of the potential parents and their interests are “entirely irreconcilable". By permitting Evans to have the embryos implanted, Johnston would be forced to become a father; if she was not, she would be denied the right to become a "genetic parent". Evans argued that her right to become a genetic parent and thus enjoy a family life - as entrenched in Article 8 of the European Convention on Human Rights - was violated by the Human Fertilisation and Embryology Act 1990.  Additionally, she argued that it also fell foul of discrimination law as the embryos' fate was being determined wholly by her former partner.  While sympathising with Ms Evans the European Court of Human Rights in Strasbourg rejected these arguments. As leading legal academic, Gary Slapper, points outs, “The law allows Natallie Evans’ partner to withdraw his consent. Plainly that is the end of the argument”.

On balance, forcing Johnston to father a child would constitute a human rights violation of greater gravity than that of refusing implantation of the embryos, even though this would prevent Evans from ever having a genetically related child. While Evans claimed greater "physical and emotional expenditure" during the IVF process, the judges refused to accept that this meant her human rights should take precedence over those of her ex-partner's. This is clearly a commonsense and logical verdict and one that has met with approval from the medical profession. While Evans will never become a genetic parent, her options for adoption or surrogacy remain intact. And of course, the overriding question still remains: why did Evans choose to have the created embryos frozen and not simply her eggs? Doing so would have allowed her complete and unfettered freedom with whom she had a child in the future. Sadly, against professional advice it seems, Natallie Evans truly did put all of her ‘eggs’ in one basket.

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