The Grand Chamber and the English courts both agree the provisions in the HFEA respect human dignity and free will as well as ensuring a fair balance between the rights of the parties in the IVF treatment. 24 Both parties had a right to withdraw their consent before the embryos were fertilised. This shows the balance of the relationship between English medical law and human rights. Both sets of law equally aimed to protect the rights of both Mrs. Evans right to motherhood and Mr. J's right not to be forced into fatherhood.
However, ethically this decision has been criticised heavily. The Court failed to state which of the parties' right to private life would be most interfered with by the regulation and reflected very little upon reproduction under Article 12. 25 Although there was equal success in the right to veto consent, women in Ms. Evans circumstances would be in a worse position than infertile men because frozen sperm can be used with any future partners while the success rate of frozen eggs is poor.
26Also, a man would not be subjected to section 13 of the HFEA27 because he would not need a woman's cooperation to start treatment services, so there maybe indirect indiscrimination against women. 28 The HFEA has also been criticised because it remains silent in the breakdown of partnership during IVF. Ms. Evans had no way of anticipating her changed position. 29 The HFEA is behind the ever-evolving medical law and needs to be updated so like human rights law it is flexible and is allowed to change.
30 Although the court's role in Evans was to resolve the dispute at hand, a broader solution should be found for the protection of reproductive autonomy. Possibly developing the law by removing critical barriers to the access of fertility services and embracing and developing new egg storage technology would preserve the value of reproductive autonomy more efficiently. 31 Despite all the criticism, this case demonstrates an example where domestic law stood without influence from human rights. Also English law and human rights law were equal in balancing interests of both parties.
English medical law has also changed without the influence of human rights. This occurred in the case of Pretty v The UK32 and R (on the application of Purdy) v Director of Public Prosecutions (DPP). 33 In the case of Pretty, Mrs. Pretty was terminally ill with motor neurone disease and requested the DPP not to prosecute her husband for under section 2(4) of the Suicide Act 1961. 34Under s. 2 (4), a person can be charged with assisted suicide with the consent of the DPP. 35 Also under s. 2 (1) if a person aids, abets, counsels or procures the suicide or attempted suicide of another they can be imprisoned for upto 14 years.
36Mrs. Pretty lost in her appeal claiming the Act and the DPP's actions were incompatible with her rights under the Convention. The CA and the House of Lord's (HL) disagreed. Mrs. Pretty sought to rely on Article 237, Article 338, Article 839, Article 940 and Article 1441. The HL's dismissed all arguments and stated Article 2 protected the sanctity of life rather than conferring rights for assisted suicide. Article 8 (1) was held not to be engaged because it was interpreted to protect the way in which individuals lived their lives, rather than a wish to die.
The HL's approached the argument from a wider perspective and not only considered Mrs. Pretty's Convention rights but also general policy implications. 43 The ECtHR, unlike the HL's, accepted that Article 8 (1) was engaged but the interference was justified under Article 8 (2) because it was necessary in a democratic society to protect the rights of others particularly the vulnerable. The Court held s. 2 of the 1961 Act protected the weak and vulnerable who weren't capable of making decisions regarding the ending of life.
The Court agreeing with the HL's that Article 2 didn't confer a right to die or create a right to self-determine when to choose death over life. 44 However, in the Purdy case the HL's took a completely different approach. Mrs. Purdy had multiple sclerosis. She wanted detailed guidance from the DPP that her husband wouldn't be prosecuted if and when he assisted her to the Dignitas Clinic, where she would die. She argued the DPP had a duty to give clear guidance of policy and failing to do so was incompatible with Article 8 (1), which interfered with her right to private and family life.
Mrs. Purdy's main focus was s. 2 (1) and (4) of the Suicide Act 1961 weren't compatible with Article 8 (2). The CA followed the HL's authority in Pretty, stating Article 8 (1) wasn't engaged and Article 8 (2) didn't apply. It was held s. 2 (1) would be satisfied, because Mrs. Purdy's husband would make arrangements and accompany his wife to the clinic. The DPP was held to have no duty to publish a detailed policy guide on assisted suicide. The HL's didn't agree with the CA and followed the decision of the ECtHR in Pretty. 45
The ECtHR in Pretty found Article 8 (1) to be engaged, stating an individual's right to self-determination and private life extended to choosing death over life when facing terminal illnesses. The ECtHR recognised the Convention respected human dignity and freedom where medicine was evolving and lives were pro-longed, individuals shouldn't be forced to stay alive in extreme circumstances. The HL's maintained their decision in the Daniel James case and stated the DPP's guidelines were more unhelpful than helpful. S. 2 (4) wasn't within the terms of Article 8 (2) and Article 8 (1) was breached.
The DPP was required to publish an offence-specific assisted suicide policy document to provide certainty in prosecution decision-making. 46 In the case of Pretty, the courts exercised a utilitarianism approach and sacrificed Mrs. Pretty's autonomy interests for the greater good, to protect vulnerable people in society who may be coerced into giving up their life. However in Purdy, they took both a utilitarianism approach but also respected Mrs. Purdy's autonomous, self-determined choice to end her life. Ethical views on autonomous decisions determining whether a life has lost value are gaining momentous.
The decision in the Purdy case had a wider public significance as more than 800 UK residents are members of Dignitas indicating people are contemplating suicide. 48 The DPP has issued guidelines which enlists factors favouring prosecution and those tending against prosecution which has provided some clarity in the law regarding assisted suicide. 49The DPP's guidelines included people who had been excluded under Lord Falconer's Bill. The DPP made it clear legalising assisted suicide altogether was a matter for Parliament, which indicated support for the notion.