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Woman takes fight over frozen embryos to European court

BMJ 2005; 331 doi: https://doi.org/10.1136/bmj.331.7519.717-b (Published 29 September 2005) Cite this as: BMJ 2005;331:717
  1. Clare Dyer, legal correspondent
  1. BMJ

    A British woman who wants to use frozen embryos that she and her former partner created before they split up took her battle to the European Court of Human Rights in Strasbourg this week.

    Natallie Evans argues that UK law, which requires both partners' consent before an embryo can be implanted, breaches her rights under the European Convention on Human Rights.

    Ms Evans and her former fiancé, Howard Johnston, underwent in vitro fertilisation treatment in 2001 to produce six stored embryos after she was given a diagnosis of ovarian cancer. Because her ovaries were removed the embryos represent her last chance to have a child of her own.

    Under the Human Fertilisation and Embryology Act 1990 both parties must consent to in vitro fertilisation treatment. Mr Johnston consented initially but changed his mind when the relationship ended.

    The European court expedited Ms Evans's hearing because the five year storage period, after which the embryos must be destroyed, expires in October 2006.

    The Strasbourg court is her last hope, after she lost in the English High Court and the Court of Appeal. The House of Lords, the UK's highest court, declined to hear a further appeal.

    Before seven judges on Tuesday Ms Evans's lawyers argued that the UK law breaches her rights under the European convention's article 8, the right to respect for private and family life, and article 14, the right not to be discriminated against (in her case, in comparison with a woman whose ovaries are intact).

    The UK courts have already acknowledged that her rights under article 8 were infringed. But the right is not an absolute one and it may be balanced against other, competing rights.

    In Ms Evans's case the UK judges ruled that the policy of giving equal rights to both parties to the in vitro fertilisation process was justified and that Mr Johnston was entitled to withdraw his consent at any time before the embryos were used.

    Ms Evans said, “I feel that I have to pursue every possible route to save my embryos. I hoped that I could have done so in the UK, but I now have no other choice but to take my case to Europe.”

    The court reserved judgment to a later date.

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