Cancer victim loses frozen embryo court battle

Tuesday, 07, Mar 2006 12:35

A British woman who was made infertile by cancer treatment has lost her European court battle to use her frozen embryos to conceive a child.

Natalie Evans, 35, from Wiltshire, has pursued a long-running legal battle to enable her to use the embryos, frozen in 2001, after her ex-partner, Howard Johnson, withdrew his consent for the embryos, produced jointly, to be used after the couple broke up in 2002.

Ms Evans had argued that the prevention of her using the embryos, imposed by the British high court on account of the 1990 Human Fertilisation and Embryology Act, represented a violation of her human rights, as well as the principle of the right to life of the unborn child.

However, the European court of human rights this morning ruled against her appeal, rejecting all three complaints brought before the court by Ms Evans, although the seven judges in Strasbourg did express their "sympathy" for her situation.

"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," the court ruled.

"However, like the national courts, the court did not find that the absence of a power to override a genetic parents withdrawal of consent, even in the exceptional circumstances of the applicants case, was such as to upset the fair balance required by Article 8 [the right to respect for privatre and family life]."

"The personal circumstances of the parties had changed and, even in the applicants case, it would be difficult for a court to judge whether the effect on the applicant [Ms Evans] of [Mr Johnson's] withdrawal of consent would be greater than the impact the invalidation of that withdrawal of consent would have on [him]."

The couple created the embryos at the Bath Assisted Conception Clinic (BACC) in November 2001, after learning that Ms Evans would have to have her ovaries removed after being diagnosed with ovarian cancer, thereby making her incapable of spontaneous conception.

Both parties gave their consent to the IVF treatment, on condition that the couple stayed together, with Mr Johnson and Ms Evans retaining the individual right to withdraw their consent at any time under the 1990 Act.

The couple split in May 2002 and Mr Johnson exercised his right to withdraw consent for the embryos to be used.

Mr Johnson has consistently maintained his right to withdraw permission for their use and expressed his relief at today's decision, saying: "It seems that common sense has prevailed."

He added: "The key thing for me was to be able to decide when and if to start a family."

However, Ms Evans has refused to give up her legal fight, vowing to request that her case be heard by the grand chamber of the European court of human rights, the last form of redress available to her.

Speaking after today's decision was announced, she expressed her disappointment and urged Mr Johnson to reconsider his position.

"I was very disappointed to learn of the judgments this morning, as I had hoped that today would be a day to celebrate. However, I am still as determined as ever to do everything possible to have a child of my own," Ms Evans said.

She added: "I would still prefer not to use the courts. Howard may feel it's too late to change his mind, but it is not. Howard, please think about it."

The Department of Health welcomed today's ruling, but expressed its "sympathy" for the "distress" caused to Ms Evans by the case.

The government is currently conducting a review into laws governing the use of embryos obtained through IVF treatment.

Should Ms Evans application for a further hearing be rejected or should the grand chamber rule against her, the embryos will be destroyed by the BACC by October at the latest. Under current laws, the clinic is obliged to dispose of all embryos held for more than five years.