Natallie attended for IVF treatment with her then fiance, Howard. They received counselling and both consented to the creation, storage and use of the embryos. Howard knew this was Natallie's only chance of having a child of her own. At the clinic, they specifically discussed what would happen if they split up, Howard reassuring Natallie that this would not happen and that she should proceed. As a result, she agreed to have her eggs fertilised with his sperm, rather than investigating other options such as donor sperm or egg freezing.
Shortly after, Howard left Natallie and withdrew his consent to the embryos remaining in storage. The clinic indicated they had no choice other than to allow the embryos to perish. Attempts at negotiating a compromise failed and Natallie went to the High Court, asking for use of the She lost: Mr Justice Wall ruled that the provisions of the Human Fertilisation and Embryology Act 1990 were clear, stating that both parties must consent to the embryos being stored or used. While the judge had every sympathy for Natallie, the law required him to order the destruction of the embryos - Howard was entitled to withdraw his consent.
Natallie was in the Court of Appeal in March this year to appeal against the original decision. She applied for permission to appeal on seven grounds and was granted permission on six. Her argument that the embryos themselves had a 'qualified' right to life under Article 2 of the European Convention on Human Rights (ECHR, incorporated into UK law by the Human Rights Act 1998) was dismissed. Their Lordships found that under English law a foetus has no rights. Therefore, how can an embryo? This is a point that is likely to have to be considered in Strasbourg if it is ever to succeed.
Their Lordships (Thorpe LJ, Sedley LJ and Arden LJ) considered the other six grounds of appeal in detail at the appeal after hearing two days of argument from lawyers acting for Natallie, for Howard, for the Department of Health and for the HFEA. Their reserved judgement is expected this month.
The issues for their Lordships are:
1) Howard originally consented to the creation, storage and use of the embryos. An embryo can only be used where there is an effective consent. To what extent is Howard's original consent broad enough in its terms to permit Natallie to now use the embryos even though they are separated? In other words, assuming that Howard had not withdrawn his consent, is his original consent wide enough to permit Natallie to continue with treatment on her own? If it is not, then Natallie cannot use the embryos regardless of the other grounds of appeal. This first issue, referred to as the 'logically prior point', is vital.2) Should Howard be 'estopped' (prevented) from withdrawing his consent? Mr Justice Wall found at trial that Howard made certain representations to Natallie about their relationship. She relied on those representations to her detriment when deciding what action to take in terms of fertility treatment. Would it now be unfair to allow him to withdraw his consent? Can equity provide a remedy to Natallie in the face of a statute?
3) Is it too late for Howard to withdraw his consent in any event? The 1990 Act permits him to withdraw his consent at any time before the embryos are 'used' in the provision of treatment services. Use is not simply implantation as it can include other things, such as tissue typing. To what extent have the embryos already been 'used' in the provision of treatment services?
4) The 1990 Act permits Howard to change his mind. Mr Justice Wall found that this constituted an interference with Natallie's right to a private and family life (ECHR Article 8). However, he found that such interference was justified. But to what extent should the policy of the Act, the primacy of consent that underpins it, permit exceptions? There is no doubt that Natallie's case is difficult on its facts. But does the fact that the 1990 Act does not permit any exceptions breach Natallie's Article 8 rights?
5) Is requiring the destruction of the embryos too severe an interference with Natallie's Article 8 rights? Could the interests of both parties be met by permitting the embryos to remain in storage? Howard has changed his mind once; he may do so again.
6) Does the 1990 Act give Howard a 'male veto'? And is this an interference with Natallie's Article 14 rights not to be discriminated against? A woman who conceives naturally has an absolute right of determination over the foetus but, because of her infertility, Natallie is prevented from conceiving naturally. Is she being discriminated against because the Act permits Howard to have the final say? Is she discriminated against on the grounds of disability (her infertility) when compared with women able to conceive naturally and thereby protect their embryos from the whims and wishes of their partner?
Whatever the judgment on these points, there is still the possibility of the case reaching the House of Lords and perhaps even the European Court of Human Rights. But whatever the eventual outcome it is clear that the case has raised fundamental questions about the rights and status of embryos and the application of the 1990 Act.
A review of the 1990 Act is now under way and it may not be too long before we see a new Act, revised and updated to take account of scientific developments that have occurred since 1990. The rapid pace of scientific progress means the Act is now being applied to circumstances that were unforeseen when it was introduced. There has also been a clear change in attitudes towards IVF treatment. The chair of the HFEA, Suzi Leather, has suggested that the provision in the Act providing for the child's need for a father to be taken into account was outdated. With the possibility of IVF on demand on the NHS and a new perspective on when and to whom IVF should be available, a review of the law is required. Whether any changes in the law will help someone in Natallie's sad predicament is another matter.
Muiris Lyons is a Partner at Withy King Solictors, and represents Natallie Evans.