The UK's Court of Appeal has ruled that Natallie Evans cannot use the IVF embryos she created with her former partner. Natallie was one of two British women legally prevented, due to the withdrawal of consent by their ex-partners, from using embryos kept in frozen storage. The embryos represent her last chance to have her own biologically related child, as she had her ovaries removed when they were found to be cancerous. The appeal court upheld an earlier decision, made in September last year, which said that the embryos must be destroyed.
Ms Evans appealed the original High Court decision of Mr Justice Wall on five grounds: first, that Howard Johnston, her former fiancé, had consented to treatment together with her and intended for her to carry the embryos created with his sperm. Secondly, that the 1990 Act is wrong, if it allows consent to be withdrawn after the embryos have been created. Thirdly, that in any event, it was too late for consent to be withdrawn as, technically, the embryos had already been 'used' as part of her treatment. Fourthly, she argued that she has a right to use the embryos as part of her human right to privacy and family life, guaranteed by Article 8 of the European Convention on Human Rights (ECHR). Lastly, she argued, the law, by granting a 'male veto' over the use of the embryos, discriminates against her in breach of Article 14 of the ECHR.
The Court of Appeal pointed out that it is a requirement of the Human Fertilisation and Embryology Act 1990 that consent from both parties is needed for the continued storage of frozen embryos, or for their use. Lord Justice Thorpe, Lord Justice Sedley and Lady Justice Arden, the judges who heard the appeal case, rejected all of the legal arguments, stating that the law as it stands is clear and unambiguous. Johnston was permitted to withdraw his consent at any time, they said. Lord Justice Thorpe pointed out, however, that 'this is a tragedy of a kind which may well not have been in anyone's mind when the statute was framed'.
The Court also commented that 'couples seeking IVF treatment should consider reaching some agreement about what is to happen to their embryos if they separate or also if the genetic father dies before implantation. Any agreement between the parties would be subject to the 1990 Act, but early discussion could avoid heartbreak at a later stage'. Muiris Lyons, the solicitor representing Natallie, said that she is 'absolutely heartbroken' by the decision. He added: 'The judgement we received today has implications not just for Natallie but for all women who have undergone IVF treatment and who have embryos in storage, and all women who are likely to undergo IVF in the future'. The Court has now been asked to stay the destruction of the embryos while Natallie and her legal team consider whether to appeal to the House of Lords.