A Romanian woman has argued, unsuccessfully, that a decision to relocate her stored embryos to another clinic, denying her a choice of a doctor, amounted to a breach of her private and family life with regard to her ability to have a child through IVF using those embryos.
In the latest of a handful of decisions regarding IVF, the European Court of Human Rights (ECtHR) echoed the wide margin of appreciation given to states in this area, concluding that the Romanian Government had acted lawfully in making the decision to move the embryos to a state institution.
Daniela Knecht stored sixteen embryos created using donated gametes for her own future use after receiving IVF in 2008 at the 'S Medical Centre' in Bucharest. In 2009 the clinic was closed, pending criminal investigations reportedly over its licence to function as a gamete bank, with all genetic material held there seized by the state. Knecht's embryos – among others – were transferred to the Mina Minovici Institute of Forensic Medicine (IFM).
Concerned about the condition of her embryos, after some discussion between relevant bodies, including the Ministry of Health, Knecht then attempted to retrieve them. However, despite enlisting the help of an embryologist and obtaining a container of liquid nitrogen for the transfer (as required), the clinic to which the embryos were to be transferred – P Clinic – said it could no longer proceed after Romania's National Transplant Agency (NTA) had refused consent to the transfer.
The NTA stated that the IFM was not accredited and approved by it to store genetic material and that the original clinic, S Medical Centre, was not accredited at the time of the initial cryopreservation. Furthermore, the NTA said it had no information about how the embryos were stored and was unable to guarantee that the minimum sanitary conditions had been complied with.
Knecht took legal action against the NTA. Romania's High
Court ruled in May 2011 that the NTA must authorise the transfer of the embryos,
saying it had no legal ground for it to interfere with a prosecutor's earlier
decision to allow Knecht to retrieve the embryos. According to the ECtHR,
the High Court criticised the NTA as being confused about the scope of its
authority and being overly formalistic. Yet Knecht's subsequent attempt to transfer the embryos to another
private clinic in Bucharest – B clinic – also failed after it said it required
full storage history of the embryos.
The state prosecuting body involved in the original decision to close 'S' then issued a decision to transfer the embryos to another state institution accredited to function as a gamete bank, which took receipt of the embryos in October 2011. However, Knecht submitted the transfer was done without her consent and that she did not want to undergo IVF at that hospital after having 'bad experiences' in relation to previous unsuccessful IVF treatments and did not trust the capacity of the doctors.
Knecht emphasised that she was entitled to be assisted by fertility doctors of her choice, in whom she trusted. She further argued there was a lack of communication and an apparent conflict between the state institutions, which had obstructed her from receiving further IVF, which – at turning 45-years-old – was prejudicial to her.
The ECtHR ruled that Knecht's application was admissible and that the issue engaged Article 8 of the European Convention on Human Rights. It said 'private life' covers the decision to have or not to have a child and to make use of assisted reproductive technologies to that end, referring to an earlier case of SH and Others v Austria (reported in BioNews 633)
However, it went on to explain that an interference with Article 8 could be justified as being 'in accordance with the law' and 'necessary in a democratic society'. It said the initial decision to put the embryos 'in custody' was made under the Romanian penal code and the relevant measure pursued a legitimate aim, to prevent crime and uphold public safety, especially in the context of a clinic operating without the proper authority to do so.
It further said that in deciding whether the decision was necessary, states are afforded a wide margin of appreciation in this field. It explained: '…the use of IVF treatment…continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments'.
Furthermore, it said the matter of the refusal and behaviour of the NTA had been dealt with by the national courts and that it had not been provided with sufficient evidence on the point of Knecht's previous experiences of IVF at the new clinic to sustain a claim under under Article 8. It found there was therefore no violation of Article 8.
It is unclear where Knecht's embryos are currently held, although
in June this year the Romanian Government told the ECtHR that its state
facility had agreed that Knecht could undergo IVF there with a doctor of her
choice, whether from Romania or abroad. The Court also heard how another
private clinic in Bucharest had stated its willingness to accept the embryos
and that Knecht had entered into discussion with it in regards to a possible