What should be the legal response to a situation where a couple, having frozen the woman’s embryos (say, for medical reasons) subsequently break up? If neither statute nor the arrangement between the couple and the clinic provides for this, then it would seem that the woman has no right to seek to implant the embryos in the hope of bearing a child or children without the consent of her now ex-partner. This at least was the view of the Irish High Court in MR v TR [2006] IEHC 359 (15 November 2006) interpreting the Irish Constitution last year (already noted on this blog); and it was the view this week of the European Court of Human Rights in Evans v UK [GC] 6339/05 [2007] ECHR 264 (10 April 2007) intrepreting the European Convention of Human Rights. (For coverage of Evans, see: Irish Times | RTE | Times story & comment | BBC | Court press release here and here | blogs here, here, here, and here).

Unlike Irish law (where there is no legislation on this issue, though it is much needed and long promised), the difficult moral and legal questions are coralled by statute in England, in the Human Fertilisation and Embryology Act 1990 (see R v Secretary of State for Health ex parte Quintavalle (on behalf of Prof-Life Alliance) [2003] UKHL 13, [2003] 2 AC 687, [2003] 2 All ER 113, [2003] 2 WLR 692 (13 March 2003)). However, when faced with this dilemma, the English courts held that the Act did not afford Ms Evans the right to implant the embryos after her ex-partner had withdrawn his consent (see Evans v Amicus Healthcare Ltd [2003] EWHC 2161 (Fam) (01 October 2003); aff’d [2004] EWCA Civ 727 (25 June 2004); leave to appeal refused: House of Lords 29 Nov 2004). A Chamber of the European Court of Human Rights held last year that none of her Convention rights were infringed by this (see Evans v UK 6339/05 [2006] ECHR 200 (7 March 2006) noted Jacco Bomhoff and Lorenzo Zucca “The Tragedy of Ms Evans: Conflicts and Incommensurability of Rightsâ€? (2006) 2 European Constitutional Law Review 424–442 (sub req’d)). Ms Evans referred the matter to the Grand Chamber of the ECHR, and its judgment this week came to the same conclusion (see Evans v UK [GC] 6339/05 [2007] ECHR 264 (10 April 2007); also here, from the Court’s own – horrible – site).

Aricle 2(1) of the Convention provides that “Everyone’s right to life shall be protected by law. …â€?, but the Court held unanimously that this was not infringed here:

[54] … in the absence of any European consensus on the scientific and legal definition of the beginning of life, 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. Under English law, as was made clear by the domestic courts in the present applicant’s case, an embryo does not have independent rights or interests and cannot claim – or have claimed on its behalf – a right to life under Article 2.

Article 8(1) of the Convention provides that “Everyone has the right to respect for his private and family life …â€?; and here, as it has traditionally done, the Court took a broad view of this right:

[71] … “private lifeâ€?, which is a broad term encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world …, incorporates the right to respect for both the decisions to become and not to become a parent. …

[75] Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.

However, Article 8(2) goes on to provide that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As the European Court of Human Rights is a court of review and not of appeal, in the first instance the court will give to the Member States some space (margin) to make the initial determination (or appreciation) whether an infringement is “necessary� in that sense (see eg Ostrovsky via SSRN). The Court reiterated its basic appraoch to the margin of appreciation in Article 8 cases:

[77] A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted … Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider … There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights …

Clearly, a state is more likely to survive review if it is accorded a wide margin of appreciation, and the Court is more likely to accord such a wide margin in contentious ethical issues where there is no uniform European approach. The Court had been referred to the legal position on this issue in several Member States as well as in the US ([43]-[48]) and Israel ([49]) and under various relevant international texts, and from which the Court thought it clear that there was no uniform European approach in this field ([79]). Against that background, the conclusion followed almost ineluctably:

[81] … since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the Member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one …

[90] As regards the balance struck between the conflicting Article 8 rights of the parties to the IVF treatment, the Grand Chamber, in common with every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else. However, given the above considerations, including the lack of any European consensus on this point …, it does not consider that the applicant’s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than J’s right to respect for his decision not to have a genetically-related child with her.

As a consequence, the Court held by thirteen votes to four that there had been no violation of Article 8.

This kinds of cases are emotional tragedies of the most heartwrenching kind. If the law cannot be just – and since for everyone who will think that the Court saw sense and got it right by the father, there will be someone else who will think that it failed in its duty to protect the embryo or the mother – it must perforce be clear. The position under the ECHR has now been clarified. That under Irish law must await the appeal in MR v TR and the sadly still absent legislation.