Rights under the Fertility Act

The dicision of the court on the given case was highly controversial.

Appelant claimed violation of her rights under the Fertility Act 1990 as stemming from the wrong definition of the decisive terms “treatment together” (with regard to the men and woman who provided the genetic material, namely, gameta and sperm which formed an embrion) and “use” (with regard to thus formed embrion) in the course of the trial in the family division as well as rights under the Convention provided in article 2 ( the right to life), article 8 ( the right to privacy, “engaged because Ms Evans' bodily integrity (private life) is affected” , article 14 (discrimination against, here, “as an infertile woman”

The facts material to this are as follows. Ms Evans and Mr. Johnson, anticipating the imminent infertility of the former as a result of removal of ovaries inflicted with cancerous tumour, entered into a consent with a view to provide an eggs and sperm and to fertilize the former with the latter to form a fertilized embrions, which was actually done on 12th November 2001; the written form justifying the mutual consent being filled in in compliance with Scheme 3 Act 1990.

“On the 19th December Ms Evans was advised that she should wait two years before an embryo transfer should be attempted. ”  After the operation Ms. Evans became infertile and the fertilized embrions were in effect the only things containing her genetical material. 27th May 2002 the relationship between the couple ended. Mr. Johnson withdrew his consent on the subsequent operations with the fertilized embrions and stated that embrions could be destroyed. His withdrawal of consent was reported to Ms Evans who, on 11th September 2002 issued proceedings.

Appelant tried to point out the “treatment together”(as provided in 1990 Act 2. 1(a): “use in providing treatment services to the person giving consent, or that person and another specified person together,”) does not actually mean “together”. To substantiate the claim  Re R (a child) [2003] 2 All ER 131 case was invoked. That court held that, “as the couple were not receiving treatment services together at the time of the transfer of the embryo to the woman, the person who sought legal paternity did not acquire that status under section 28(3) [of 1990 Act].

”  But the court in Evans recognized that “the effect of the provision of treatment services together in section 28 is a very different from its effect in schedule 3, paragraph 2(1)(a). ”  Instead, the “effective consent” reffered to in Scheme 3 1. is recognized to turn into “ineffective” or fail if a ”joint enterprise” of the two people who provided genetic material should happen to no longer be so.

Thus, withdrawal of the consent by one of the genetical material providers may only result in consent, vital to the treatment of embrions, being rendered “inoperative”. The next claim was pointed at identifying “the last point in time when a consent can be withdrawn. ”  1990 Act, Schedule 3, 4. 2. states that “the terms of any consent to the use of any embryo cannot be withdrawn, once the embryo has been used:(a) in providing treatment services, or (b) for the purposes of any project of research.

” The appelant submitted that "use" is practically limited to transfer to a woman” on the basis of paragraph 1(1)(d) of schedule 2 that refers “activities” that can be licensed as "practices designed to secure that embryos are in a suitable condition to be placed in a woman…”  On the basis of in R (Quintavalle) v Human Fertilisation and Embryology Authority [2004] QB 168 case when the license was granted to the removal of a single cell from an embryo (thus, that procedure was held to be the "use" of an embryo).

Thus, appelant did not succeed in substantiating that  withdrawal can be made only prior to the “use” which in his definition practically meant transfer to the woman and all together may mean the denial of the right to withdraw consent after the fertilization. The next claim was dismissed on the ground of UK and European court cases. Article 2 of the convention provides the right to life. Appelant submits “that an embryo has a qualified right to life, that is a right to life which is consistent with his mother's wishes.

”  Though neither the Convention nor UK legislation does not give a clear cut answer on where is the line of right to life starts, in Re F (in utero) [1988] Fam 122 the court rejected the foetud right to life as provided in article 2. As the european court, which also lacks consensus in ethcial issues of IVF treatment, left the wide margin of appreciation to the member states, the dicision of the court on the basis of 1990 Act denying the embryo even a qualified right to life is in no way incompatible with the Convention.

The relevance of the claim on the infringement of the right to privacy as provided in article 8 of the Conventions was sustained by the court and the claim was treated on the basis of “proportionality test”. The latter is in that the court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. The limitations of Ms.

Evans rights was prescribed by UK legislation and made so for the protection of the rights of the others. The question is, therefore, whether those limitations was proportionate “to the need which makes it legitimate’. The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective.

To dilute this requirement in the interests of proportionality, in order to meet Ms Evans' otherwise intractable biological handicap, by making the withdrawal of the man's consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. It was admitted that in no way, for the reasons given, it is possible to construct an alternative system which would have the effect satisfactory to Ms. Evens privacy and maternity rights, “would be Convention-compliant and would still be able to achieve the legitimate objectives of the legislation.

It might be otherwise if one of those objectives were to fix consent at the moment of sperm donation”  but that could not be done by the court without change in legislation. Thus, the appeal was declined and the violation of rights provided in article 8 was not found on the basis of “proportionality test”. Conclusion: Human right act has got a mighty impact on family law and its impact is likely to be so. Goodwin v UK and I v UK cases illustrates that trend.

This is not to say that the decisions of Strasburg Court were unpredicted with regard to the state of societal relations. The sand of time run fast and societal perceptions of the family matters in fact changes. The point is that legislation lags behind. There are some problems which are capable of deciding if the court adheres to the “legislative intention” (FITZPATRICK V STERLING HA Ltd [2000]), those demanding new legislation (Goodwin v UK, I v UK, Bellinger v Bellinger) and those weighed against “proportionality” and failed (Evans v Amicus).

The incomparability declaration provided in section 4 of Human rights act 1998 and decisions of ECHR are the means to prompt an ‘up-to-date’ legislation and decide the three supra stated problems all together.

References: 1. [2004] EWCA Civ 727 2. Goodwin & I v. United Kingdom Government: What Does It Mean? Analysis of the implications of the ECtHR judgments in the cases of Goodwin v. UK and I v UK 2nd November 2002 By Stephen Whittle (vice-president, Press For Change) http://www.libertocracy.com/Librademia/Essays/Humanity/2personal.htm