The UK's House of Lords has refused to allow an appeal from Natallie Evans, a woman seeking to be able to use frozenIVF embryos that were created before she separated from her then partner, who has since withdrawn his consent to their use. The embryos represent her last chance to have her own biologically related child, as her ovaries were removed when they were found to be cancerous.
The High Court decided in September 2003 that the embryos must be destroyed, as they could not be used without the consent of both parties. Ms Evans appealed that decision 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 Secondly, that the 1990 Human Fertilisation and Embryology Act is wrong, if it allows consent to be withdrawn after the embryos have been created. Thirdly, that in any event, it was too late for consent to be withdrawn as, technically, the embryos had already been 'used' as part of her treatment.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.
In June 2004, the Court of Appeal upheld the High Court decision, pointing out that the 1990 Act requires that consent from both parties is needed for the continued storage of frozen embryos, or for their use. The three judges - Lord Justice Thorpe, Lord Justice Sedley and Lady Justice Arden - rejected all the legal arguments, saying that the current law is clear and unambiguous. Johnston was permitted to withdraw his consent at any time, they said. Lord Justice Thorpe commented, however, that the case 'is a tragedy of a kind which may well not have been in anyone's mind when the statute was framed'.
The appeal 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'. The court then agreed to stay the destruction of the embryos while Natallie and her legal team considered whether to appeal to the House of Lords. Now, three Law Lords have rejected her petition for a further appeal, on the grounds that her case 'did not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the cause has already been the subject of judicial determination'. Muiris Lyons, the solicitor representing Natallie, said that 'clearly, Natallie is very disappointed at the decision', adding 'she was hopeful that the House of Lords would recognise the importance of the case, not just to her but to others, and hear the appeal'. Natallie and her legal team are now considering whether to take the case to the European Court of Human Rights.