Evans v. the United Kingdom
Encyclopedia
Evans v. the United Kingdom was a key case at the European Court of Human Rights
. The case outcome could have had a major impact on fertility law, not only within the United Kingdom
but also the other Council of Europe
countries.
Professor John Harris of the University of Manchester
told the BBC
in September 2002:
On 10 April 2007 Natallie Evans lost her final appeal at the Grand Chamber of the European Court of Human Rights
.
in Wiltshire
became engaged. In October 2001 Ms Evans from Trowbridge
was diagnosed with ovarian cancer
, and was offered a cycle of IVF treatment before her cancer treatment because her fertility would be affected. On 12 November 2001 eleven of Ms Evans eggs were produced and fertilised using Mr Johnston's sperm, resulting in six embryo
s which were frozen and placed in storage. On 26 November 2001 Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus
.
In May 2002, the couple split up. In the summer of 2002, Mr. Johnston, who lives in Cheltenham
, wrote to the Bath, Somerset clinic storing the embryos and asked that they be destroyed.
On 30 July 2002 the clinic informed Ms Evans of Mr Johnston's request under current United Kingdom IVF law, regulated by the Human Fertilisation and Embryology Authority
, which states that both parties must give their consent for IVF to continue – otherwise, the embryos must be destroyed.
Ms Evans started her legal challenge immediately, which in agreement with her solicitor Muiris Lyons was a dual challenge on the existing UK law under Human Rights
proposal, with Lorraine Hadley. Mrs Hadley from Baswich
, Staffordshire
, underwent IVF treatment but later got divorce
d from her husband Wayne, and wanted to use two of her stored embryos to try to get pregnant. She has a 17-year-old daughter (born 1985) from a previous relationship, but suffered from fertility problems because of a medical condition.
in September 2002 that, as treatment was already under way, the men should not have the right to stop it. The women used the analogy that if they got pregnant naturally and the embryos were in their bodies, then their partners would have no say at all. In September 2002, Elizabeth Butler-Sloss, Baroness Butler-Sloss
the president of the High Court's Family Division, said that a full hearing would be scheduled for the New Year, later confirmed as 30 June 2003.
On 1 October 2003 Mr Justice Wall said that in ruling against the women, although he had sympathy for the women's situation, he could not over-rule the law as it stood. He said it was up to Parliament, rather than the High Court, to decide whether the law in this area needed to be changed. The High Court ruled the embryos of both women should be destroyed, but that would not happen until the conclusion of the appeals process. Refused the right to appeal to the Law Lords, the women could still take their case to the Court of Appeal or on to the European Courts. The main secondary outcome of the ruling was that the judge ruled that fertility clinics would now have to counsel couples having IVF to consider carefully what would happen to any embryos that were created if they split up.
James Grigg, solicitor for Howard Johnston, said: "Mr Johnston firmly believes that this outcome could be the only one, given the circumstances. With the conclusion of his relationship with Ms Evans, he would not now elect to start a family with her. If a child had been born, Mr Johnston would have legal, financial, emotional and moral responsibility for it. Mr Johnston hopes that Ms Evans wish to start a family can be satisfied in some other way, perhaps using donor eggs." After offering to donate the embryos to infertile couples, on 24 October 2003 Mrs Hadley told the BBC
Midlands Today
regional news program that she was giving up her fight in light of the unlikely scenario that her ex-husband would provide consent to her using the embryos, and the withdrawal of legal aid
.
was refused on the grounds that the petition "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." Ms Evans still had the right to appeal to the European Court of Human Rights (ECHR) in Strasbourg
.
On 7 March 2006 a panel of seven judges of the ECHR delivered a majority 5-2 ruling against Ms Evans, which read: "The Court, like the national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child." However, the panel majority found that, even in such exceptional circumstances as Ms Evans', the right to a family life – enshrined in article eight of the European Convention of Human Rights – could not override Mr Johnston's withdrawal of consent. The panel also ruled, this time unanimously, that the issue of when the right to life begins "comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere", and thus rejected the claim that embryo's right to life was being threatened.
Michael Wilks, of the British Medical Association
ethics committee, said: "It's the right verdict, but a terrible situation." Dr Wilks called for a change to the five year limit for embryos to be stored after one partner withdraws consent should be extended so there was less of a "ticking clock". Ms Evans decided to appeal to the Grand Jury of the European Court, but commented that she still wanted her ex-fiancé to change his mind to allow the embryos to be used.
On 10 April 2007 the Grand Chamber of the ECHR ruled against Ms Evans appeal under three articles of the European Convention of Human Rights, which represented her last chance to save the embryos. The court ruled unanimously that there had been no breach of the right to life; but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to 4 (Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele dissented the judgement). Dr Allan Pacey, secretary of the British Fertility Society, said: "I think it was the only sensible decision which the Grand Chamber could come to. UK law is clear. It is a principle of shared responsibility."
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
. The case outcome could have had a major impact on fertility law, not only within the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
but also the other Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
countries.
Professor John Harris of the University of Manchester
University of Manchester
The University of Manchester is a public research university located in Manchester, United Kingdom. It is a "red brick" university and a member of the Russell Group of research-intensive British universities and the N8 Group...
told the BBC
BBC
The British Broadcasting Corporation is a British public service broadcaster. Its headquarters is at Broadcasting House in the City of Westminster, London. It is the largest broadcaster in the world, with about 23,000 staff...
in September 2002:
"If the woman (Natallie Evans) succeeds in this case then the whole basis upon which the Human Fertilisation and Embryology AuthorityHuman Fertilisation and Embryology AuthorityThe Human Fertilisation and Embryology Authority is a statutory body in the United Kingdom that regulates and inspects all UK clinics providing in vitro fertilisation, artificial insemination and the storage of human eggs, sperm or embryos. It also regulates Human Embryo research...
has operated thus far will be overturned. Until now, it has operated on the basis that there must be continuing consent between a man and in every stage of the reproductive process. If she (Ms Evans) succeeds in this case, then she will have established that the man's role ends once the egg is fertilised."
On 10 April 2007 Natallie Evans lost her final appeal at the Grand Chamber of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
.
Facts
In June 2000, Natallie Evans (born October 1971) and Howard Johnston (born November 1976) who had met while working at Virgin MobileVirgin Mobile
Virgin Mobile is a brand used by many mobile phone service providers across the globe; its headquarters are based in the United Kingdom. Virgin Mobile has local operations in Australia, Canada, France, India, South Africa, Greece, United Kingdom and the United States. It briefly also had operations...
in Wiltshire
Wiltshire
Wiltshire is a ceremonial county in South West England. It is landlocked and borders the counties of Dorset, Somerset, Hampshire, Gloucestershire, Oxfordshire and Berkshire. It contains the unitary authority of Swindon and covers...
became engaged. In October 2001 Ms Evans from Trowbridge
Trowbridge
Trowbridge is the county town of Wiltshire, England, situated on the River Biss in the west of the county, approximately 12 miles southeast of Bath, Somerset....
was diagnosed with ovarian cancer
Ovarian cancer
Ovarian cancer is a cancerous growth arising from the ovary. Symptoms are frequently very subtle early on and may include: bloating, pelvic pain, difficulty eating and frequent urination, and are easily confused with other illnesses....
, and was offered a cycle of IVF treatment before her cancer treatment because her fertility would be affected. On 12 November 2001 eleven of Ms Evans eggs were produced and fertilised using Mr Johnston's sperm, resulting in six embryo
Embryo
An embryo is a multicellular diploid eukaryote in its earliest stage of development, from the time of first cell division until birth, hatching, or germination...
s which were frozen and placed in storage. On 26 November 2001 Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus
Uterus
The uterus or womb is a major female hormone-responsive reproductive sex organ of most mammals including humans. One end, the cervix, opens into the vagina, while the other is connected to one or both fallopian tubes, depending on the species...
.
In May 2002, the couple split up. In the summer of 2002, Mr. Johnston, who lives in Cheltenham
Cheltenham
Cheltenham , also known as Cheltenham Spa, is a large spa town and borough in Gloucestershire, on the edge of the Cotswolds in the South-West region of England. It is the home of the flagship race of British steeplechase horse racing, the Gold Cup, the main event of the Cheltenham Festival held...
, wrote to the Bath, Somerset clinic storing the embryos and asked that they be destroyed.
On 30 July 2002 the clinic informed Ms Evans of Mr Johnston's request under current United Kingdom IVF law, regulated by the Human Fertilisation and Embryology Authority
Human Fertilisation and Embryology Authority
The Human Fertilisation and Embryology Authority is a statutory body in the United Kingdom that regulates and inspects all UK clinics providing in vitro fertilisation, artificial insemination and the storage of human eggs, sperm or embryos. It also regulates Human Embryo research...
, which states that both parties must give their consent for IVF to continue – otherwise, the embryos must be destroyed.
Ms Evans started her legal challenge immediately, which in agreement with her solicitor Muiris Lyons was a dual challenge on the existing UK law under Human Rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
proposal, with Lorraine Hadley. Mrs Hadley from Baswich
Baswich
Baswich is an estate in the south eastern side of Stafford in the parish of Berkswich. It is situated next to Weeping Cross but should not be confused with Weeping Cross....
, Staffordshire
Staffordshire
Staffordshire is a landlocked county in the West Midlands region of England. For Eurostat purposes, the county is a NUTS 3 region and is one of four counties or unitary districts that comprise the "Shropshire and Staffordshire" NUTS 2 region. Part of the National Forest lies within its borders...
, underwent IVF treatment but later got divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
d from her husband Wayne, and wanted to use two of her stored embryos to try to get pregnant. She has a 17-year-old daughter (born 1985) from a previous relationship, but suffered from fertility problems because of a medical condition.
High Court
Lawyers for the two women proposed to the High Court of JusticeHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
in September 2002 that, as treatment was already under way, the men should not have the right to stop it. The women used the analogy that if they got pregnant naturally and the embryos were in their bodies, then their partners would have no say at all. In September 2002, Elizabeth Butler-Sloss, Baroness Butler-Sloss
Elizabeth Butler-Sloss, Baroness Butler-Sloss
Anne Elizabeth Oldfield Butler-Sloss, Baroness Butler-Sloss, GBE, PC is a retired English judge. She was the first female Lord Justice of Appeal and, until 2004, was the highest-ranking female judge in the United Kingdom. Until June 2007, she chaired the inquests into the deaths of Diana, Princess...
the president of the High Court's Family Division, said that a full hearing would be scheduled for the New Year, later confirmed as 30 June 2003.
On 1 October 2003 Mr Justice Wall said that in ruling against the women, although he had sympathy for the women's situation, he could not over-rule the law as it stood. He said it was up to Parliament, rather than the High Court, to decide whether the law in this area needed to be changed. The High Court ruled the embryos of both women should be destroyed, but that would not happen until the conclusion of the appeals process. Refused the right to appeal to the Law Lords, the women could still take their case to the Court of Appeal or on to the European Courts. The main secondary outcome of the ruling was that the judge ruled that fertility clinics would now have to counsel couples having IVF to consider carefully what would happen to any embryos that were created if they split up.
James Grigg, solicitor for Howard Johnston, said: "Mr Johnston firmly believes that this outcome could be the only one, given the circumstances. With the conclusion of his relationship with Ms Evans, he would not now elect to start a family with her. If a child had been born, Mr Johnston would have legal, financial, emotional and moral responsibility for it. Mr Johnston hopes that Ms Evans wish to start a family can be satisfied in some other way, perhaps using donor eggs." After offering to donate the embryos to infertile couples, on 24 October 2003 Mrs Hadley told the BBC
BBC
The British Broadcasting Corporation is a British public service broadcaster. Its headquarters is at Broadcasting House in the City of Westminster, London. It is the largest broadcaster in the world, with about 23,000 staff...
Midlands Today
Midlands Today
Midlands Today is the BBC's regional television news programme for the West Midlands region, which covers the north of Gloucestershire, Herefordshire, Shropshire, Staffordshire, Warwickshire, Worcestershire and the West Midlands county...
regional news program that she was giving up her fight in light of the unlikely scenario that her ex-husband would provide consent to her using the embryos, and the withdrawal of legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
.
Court of Appeal
On 29 November 2004 three Lord Justices rejected Ms Evans' petition for permission to appeal. Permission to appeal to the House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
was refused on the grounds that the petition "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." Ms Evans still had the right to appeal to the European Court of Human Rights (ECHR) in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...
.
European Court of Human Rights
On 26 January 2005 the Bath clinic informed Ms Evans that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005. Although now outside the statutory five year legal limit for the retention before use of embryos, on 27 February 2005 the ECHR, to whom Ms Evans had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.On 7 March 2006 a panel of seven judges of the ECHR delivered a majority 5-2 ruling against Ms Evans, which read: "The Court, like the national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child." However, the panel majority found that, even in such exceptional circumstances as Ms Evans', the right to a family life – enshrined in article eight of the European Convention of Human Rights – could not override Mr Johnston's withdrawal of consent. The panel also ruled, this time unanimously, that the issue of when the right to life begins "comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere", and thus rejected the claim that embryo's right to life was being threatened.
Michael Wilks, of the British Medical Association
British Medical Association
The British Medical Association is the professional association and registered trade union for doctors in the United Kingdom. The association does not regulate or certify doctors, a responsibility which lies with the General Medical Council. The association’s headquarters are located in BMA House,...
ethics committee, said: "It's the right verdict, but a terrible situation." Dr Wilks called for a change to the five year limit for embryos to be stored after one partner withdraws consent should be extended so there was less of a "ticking clock". Ms Evans decided to appeal to the Grand Jury of the European Court, but commented that she still wanted her ex-fiancé to change his mind to allow the embryos to be used.
On 10 April 2007 the Grand Chamber of the ECHR ruled against Ms Evans appeal under three articles of the European Convention of Human Rights, which represented her last chance to save the embryos. The court ruled unanimously that there had been no breach of the right to life; but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to 4 (Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele dissented the judgement). Dr Allan Pacey, secretary of the British Fertility Society, said: "I think it was the only sensible decision which the Grand Chamber could come to. UK law is clear. It is a principle of shared responsibility."
Timeline
The timeline of the case is as follows:- June 2000 - Natallie Evans and Howard Johnston, who have been together a year, become engaged
- October 2001 - Ms Evans, from TrowbridgeTrowbridgeTrowbridge is the county town of Wiltshire, England, situated on the River Biss in the west of the county, approximately 12 miles southeast of Bath, Somerset....
, WiltshireWiltshireWiltshire is a ceremonial county in South West England. It is landlocked and borders the counties of Dorset, Somerset, Hampshire, Gloucestershire, Oxfordshire and Berkshire. It contains the unitary authority of Swindon and covers...
, is diagnosed with ovarian cancerOvarian cancerOvarian cancer is a cancerous growth arising from the ovary. Symptoms are frequently very subtle early on and may include: bloating, pelvic pain, difficulty eating and frequent urination, and are easily confused with other illnesses....
, and is offered a cycle of IVF treatment before treatment because her fertility will be affected - November 2001 - Eleven eggs are produced and fertilised, resulting in six embryos which are frozen and placed in storage
- Summer 2002 - Mr Johnston, who lives in CheltenhamCheltenhamCheltenham , also known as Cheltenham Spa, is a large spa town and borough in Gloucestershire, on the edge of the Cotswolds in the South-West region of England. It is the home of the flagship race of British steeplechase horse racing, the Gold Cup, the main event of the Cheltenham Festival held...
, writes to the Bath, Somerset clinic storing the embryos asking for them to be destroyed after the couple had split - June 2003 - Ms Evans, and another woman Lorraine Hadley, from Baswich, Staffordshire, go to the High Court seeking permission to use frozen embryos against their exes wishes
- October 2003 - the High Court of JusticeHigh Court of JusticeThe High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
rules against Ms Evans and Mrs Hadley. Mrs Hadley decides to end her legal battle, but Ms Evans vows to continue - January 2004 - Ms Evans seeks leave to appeal against the High Court judgement
- June 2004 - The Appeal Court also rules that Ms Evans cannot use the embryos without Mr Johnston's consent
- November 2004 - the Law LordsJudicial functions of the House of LordsThe House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
refuse her permission to take her case to the House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster.... - February 2005 - Ms Evans lodges an appeal with the European Court of Human RightsEuropean Court of Human RightsThe European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
- September 2005 - The European Court hears her case
- March 2006 - Ms Evans hears the court has ruled against her, and says she will seek leave to appeal to the Grand Chamber of the European Court
- 10 April 2007 - Grand Chamber of the European Court of Human RightsEuropean Court of Human RightsThe European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
hears case, and rules against Ms Evans