Wednesday, April 11, 2007

European Human Rights Case on Frozen Embryos

From the BBC:

Natallie Evans, from Trowbridge, Wilts, and Howard Johnston began IVF treatment in 2001 but he withdrew consent for the embryos to be used after they split up.

She turned to the European courts after exhausting the UK legal process.

Ms Evans, 35, said she was "distraught" after the Grand Chamber of the European Court ruling, but Mr Johnston said "common sense had prevailed".

Ms Evans was diagnosed with ovarian cancer in 2001, but six of the couple's fertilised embryos were frozen and stored prior to her treatment.

But she and Mr Johnston, who lives in Gloucester, split up in 2002 and he wrote to the clinic asking for the embryos to be destroyed.

Ms Evans took the case to the High Court in 2003 asking to be allowed to use them without Mr Johnston's permission.

She has argued he had already consented to their creation, storage and use, and should not be allowed to change his mind.

Current UK laws require both the man and woman to give consent, and allows either party to withdraw that consent up to the point where the embryos are implanted.

Ms Evans lost both the case and the appeal and was told she could not take the case to the House of Lords.

Mr Johnston said common sense had prevailed

She then appealed to the European Court of Human Rights, which again ruled against her a year ago.

Her appeal to the Grand Chamber of the European Court under three articles of the European Convention of Human Rights represented her last chance to save the embryos.

The court ruled unanimously that there had been no breach of the right to life, but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to four.

Ben Barros

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Fascinating. Raises a question in my mind: Based on this logic, could a man who makes love to his wife (the old fashioned way), and then prior to her becoming aware she's pregnant, withdraw his consent to be the father of the embryos? If I'm not confusing the reasoning, the answer could be "yes", which would seem to be contrary to our normal way of thinking and adjudicating paternity.

If the issue is whether the vesting of the father's "property rights" in the embryos doesn't expire, as it were, until the embryos are implanted, then one could make the argument that the same applies in that small zone of time prior to natural (in vivo) implantation.

Logically I could not imagine a judge sitting there and listening to the nervous paternity candidate, desperately trying to claim that he "changed his mind" soon after having had sex with the mother, and thereby absolve himself of paternal responsibilities.

On the other hand of course is the issue of control, unique to IVF, and therefore my parallel is not relevant. If the issue is one of timing and CONTROL, then this situation is particular to IVF and it would seem that the court got it right: prior to implantation, the potential father should have a right (absent contractual language) to change his mind.

Maybe Jerry Springer has a few final thoughts that could enlighten me on this topic?

Posted by: Sam Gompers | Apr 11, 2007 8:41:14 AM

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