In vitro fertilisation (IVF), and the unilateral consent of the potential mother, is a circumstance that invokes both legislative and Convention rights for both parties, prior to the actual process of childbirth.
On this occasion, the needs of a single woman are driven to exhaustion, despite knowledge that her former partner has made his position clear.
Having both met in their twenties, the parties to this case were engaged to be married, while at the time, equally excited about the possibility of raising children.
Before conception could begin, the appellant was diagnosed with cancerous tumours to both her ovaries; at which point, her world quite literally turned upside down.
Following a medical consultation, the appellant learned that due to slow tumour growth, there was hope that IVF treatment might permit her the chance to carry a child to birth, and thus have the life she had hoped for.
As part of the process, the two parties were asked to complete consent forms for the use and storage of sperm and embryos, as prescribed by the Human Fertilisation and Embryology Act 1990 (HFEA).
Upon completion of the harvesting and fertilisation process, six embryos were cryogenically frozen for use by the donors at a time two years from the treatment, and as advised by the clinic.
Roughly six months after their participation, the couple separated, and the man wrote to the clinic, expressly notifying them of his wish to withdraw from the arrangement, and to request that the embryos be destroyed.
Upon learning of this, the appellant issued proceedings against him by injunction on the stipulation that he could not withdraw from the agreement, that the embryos were to be kept frozen for ten years as per the terms of the agreement, and that the appellant was lawfully entitled to receive the embryos, despite his obvious disagreement.
By declaration of incompatibility with schedule 3 of the 1990 Act, it was further claimed that anything to the contrary was a violation of articles 2 (Right to life), 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), and that the embryos were afforded equal rights under articles 2 and 8 accordingly.
Schedule 3 of the HFEA 1990 Act was drafted to address all matters relating to consent and use of gametes or embryos, and while it was contended that paragraph 2(1)(a) provided that consent allowed for the treatment of two people acting ‘together’, it is also clearly provided for in section 4(1)(b) that no person shall:
“[I]n the course of providing treatment services for any woman, use the sperm of any man unless the services are being provided for the woman and the man together or use the eggs of any other woman, except in pursuance of a licence.”HFEA ACT 1990
This translated that the written withdrawal by the appellant’s former partner had vetoed the use of the embryos in the absence of his consent, and the family court adopted the same line of argument, before dismissing her claim.
Having been appealed before the Supreme Court, the implications of Convention rights and incompatibility were given greater consideration, along with commentary by the Secretary of State, as required under section 5(2) of the Human Rights Act 1998.
Adopting the position that the case revolved around the right to bring life into being as opposed to a right to life, the Court held that the appellant needed to recognise the complexities of the IVF process, and that careful scrutiny of the Warnock Report demonstrated that the rights of fathers had been exercised with due caution of the rights of potential mothers.
It was also held that while denial of the treatment to the appellant was a violation of article 8 of ECHR, the same principles equally applied were the Court to allow the appellant to proceed without the consent of her former partner.
Therefore, in circumstances of public policy, it was deemed justifiable to encroach upon certain Convention rights where the best interests of the people applied.
While accusations of discrimination levelled under article 14 ECHR were also valid, there were unavoidably distinct differences between natural conception and the rigours of IVF; therefore, a right to withdraw from consent was fundamental to the mechanics of such treatment, and thus did not prejudice the appellant on grounds of gender.
With regard to the rights of the embryos, it was determined under article 2 of ECHR (Everyone’s right to life shall be protected by law), that in accordance with section 37(1)(a) of the HFEA Act 1990, a twenty-four week old foetus was eligible to legal rights, but not before.
And so, any declaration that non-enforcement of rights was incompatible with the Convention could not be sustained; hence, the appeal was dismissed, with note to the need for greater clarification of individual rights during the IVF registration process, so as to avoid further painful outcomes for those involved, while the court reminded the parties that:
“[W]hile legislation modifying individuals’ private law liabilities can be expected not to infringe their Convention rights without clear justification, legislation directed to the implementation and management of social policy may well have to infringe some individuals’ Convention rights in the interests of consistency.”