Embryos: who do they “belong” to?In Vitro Fertilisation

The 2008 HFE Act specifies that a 10 year licence be granted as standard to both the storage of gametes and embryos (although extensions and shorter periods may also be applied for).

The 1990 Act however, specified a limit of just 5 years for storage of gametes/embryos produced, due to perceived limits of ‘safety’ at that time.

As a result, as 1996 approached, the 5 year period for the first storage licenses granted were soon to expire. This left the question: what was to become of these initial stored gametes/embryos?

With their storage period set to finish, the gametes/embryos faced disposal, especially since most centres had lost contact with their original donors.

Following public outcry, the government used powers under the 1990 Act to extend the licence to allow storage for 10 years.

The ethical implications of discarding embryos, especially in relation to research upon them, shall be considered elsewhere in this site. What happens however, in the event that the couple that originally had the embryos created, disagree about their fate especially when their storage licence approaches termination?

Case Study: Evans v Amicus Healthcare Ltd.

When Natalie Evans was diagnosed with pre-cancerous tumours in both of her ovaries, she was advised to have them removed as her best course of treatment. Natalie and her partner at the time, Howard Johnson, therefore decided to have IVF and have the resulting embryos frozen for future use, prior to Natalie having her ovaries removed. Natalie had enquired whether she may just have her eggs frozen, but was informed by doctors that success rates from such storage were much lower than that for frozen embryos.

Mr Johnson reassured Ms Evans that they would not break up and would go on to have children together when she was fully recovered from her present health battle. Both therefore signed the necessary forms, as required by the HFE Act, to specify their desired fate for their prospective embryos (as well as what may not be done to them) prior to commencing IVF treatment.

Just a year later however, the couple split. Mr Johnson informed the IVF clinic that he now wished to withdraw his consent for continued storage of his embryos and that he wished them destroyed, despite Ms Evans’ appeals that the embryos offered her her only chance of having a child of her own and that she would not make any demands, financial or otherwise, on Mr Johnson should a child be born.

Despite this, Mr Johnson remained adamant in his decision. Ms Evans’ only choice was to now turn to Section 3 of the 1990 Act which specified that both parties that created any stored embryos must give ’effective consent’ for any decisions relating to the storage or use of them.

Mr Johnson’s defence interpreted this regulation as being that he had withdrawn his consent for continued storage and had not given effective consent for Ms Evans to use the embryos. This must therefore be respected.

Ms Evans on the other hand, argued that even if Section 3 were to be interpreted as being that Mr Johnson’s continued consent for storage were required, this remained a breach of her human rights under the European Convention of Human Rights. Articles 8, 12 and 14 under the convention specify a person’s right to family life and to found a family. According to Ms Evans, should the embryos be terminated at Mr Johnson’s request, her rights to the her only chance to have a child of her own, would, in her eyes, have been abused.

Both the High Court and The Court of Appeal however, found in favour of Mr Johnson, stating that whilst Ms Evans’ may be affected under Article 8, so would Mr Johnson‘s rights under the same Article, should Ms Evans have a child as his father’s right to self determination and autonomy would have been abused.

Ms Evans then appealed to the European Court of Human Rights and lost again. The Court held that its various Member States had different rules with regards to embryo storage and termination; some of which would be more, less and similar to the UK’s ruling with regards to the rights of the father. Despite Ms Evans claims that Mrs Johnson may suffer a breach in his human rights but to terminate the embryos would obliterate her equivalent right, the Court determined that the UK regulatory system was based on suitable appreciation of this issue and therefore its judgment (in favour of Mr Johnson) was to be upheld.

Ms Evans continues to fight with her case now having been heard in the Grand Chamber of the European Court.

(Brazier, Cave 2007)

In the fall out of the Evans/Johnson case, a review of Schedule 3 of the 1990 Act was ordered. Following recommendations published in the White Paper produced from this review, the 2008 Act contains the ruling that a 12 month “cooling-off” period now be required following any decision by either gamete provider for their embryos to be destroyed. This 12 month period is designed to allow for either/both parties to have a change of heart or, conversely, consent to the embryo termination.