The UK woman fighting to use stored frozen embryos created using her former partner's sperm made a final appeal last week, to the Grand Chamber of the European Court. Natallie Evans started fertility treatment with Howard Johnston in 2001, but he withdrew his consent for the embryos to be used when the couple later split up. Ms Evans, now aged 35, first took her request to use the embryos without Mr Johnston's permission to the UK's High Court in 2003, but lost both the case and a subsequent appeal. Earlier this year, the European Court of Human Rights (ECHR) also ruled against her. The verdict in the latest appeal is not expected until early next year, but according to Mr Johnston's lawyer, Ms Evans' application is 'bound to fail'.
The UK's law, in the form of the Human Fertilisation and Embryology (HFE) Act 1990, requires continued consent from both parties in order for embryos to be used or remain in storage. A withdrawal of consent means that the embryos should be destroyed. The embryos represent Ms Evans' last chance to have her own biologically related child, as her ovaries were removed when they were found to be cancerous. It was at this point that she also agreed to store embryos created with her partner's sperm - rather than freezing her eggs or using donor sperm to create embryos.
Last September, Ms Evans asked the ECHR to rule whether UK law preventing her using stored frozen embryos violated her human rights under Articles 8 (right to respect for private and family life) and 14 (freedom from discrimination) of the European Convention on Human Rights. She also asked the ECHR to consider whether the embryos themselves had a right to life under Article 2. On 7 March, the ECHR unanimously ruled that there had been no violation of Article 2 concerning the actual embryos; unanimously that there had been no violation of Article 14 concerning the way Ms Evans was treated by the law; and, by five votes to two, that there had been no violation of Article 8.
The ECHR ended its judgment by saying that parties had the ability to ask that the case be heard by the Grand Chamber of the European Court of Human Rights. In a statement to the press at the time, Muiris Lyons, the solicitor acting for Ms Evans, said that this, along with the fact that the five majority judges expressed their 'great sympathy for the plight of Natallie', and the strength of the dissenting judgment, had convinced her to request that the case be referred to the Grand Chamber. The ECHR also reminded the UK Government that it must take appropriate measures to ensure that Natallie Evans' embryos are not destroyed until the judgment became final or pending any further order.
Ms Evans' appeal was heard by 17 judges sitting at the Court's Grand Chamber last week. Ahead of the hearing, she told the BBC's Heaven and Earth show that 'I've got nowhere else to go after this. This is the end of the legal battle', adding 'these are potential children to me. I'm their mum and I'm their voice'. However, James Grigg, the lawyer representing Mr Johnston, said that the law 'clearly' states that the use of the embryos requires the consent of both parties. 'My feeling is that the application is bound to fail', he said, adding 'there must surely be consent to parenthood in the interests of any child born as a result of IVF'.
Dr Jess Buxton is Contributing Editor at BioNews and a Trustee at the charity that publishes it, the Progress Educational Trust (PET). She is co-author of The Rough Guide to Genes and Cloning (buy this book from Amazon UK or Amazon USA) and Human Fertilisation and Embryology: Reproducing Regulation (buy this book from Amazon UK or Amazon USA).
