Evans v Amicus Healthcare Ltd & Ors (includes Summary of Judgment)

IVF treatment under the Human Fertilisation and Embryology Act 1990 requires the effective consent of both gamete providers throughout treatment. Consent may be varied or withdrawn until the embryo is used; in this context, use means transfer into the woman. Creation, examination, selection and storage are preparatory steps.

Where consent was given for treatment of a couple together, permanent separation means that the original consent no longer authorises treatment of the woman alone. The statutory regime gives equal rights to all gamete providers and is compatible with Convention rights. Promissory estoppel cannot prevent withdrawal where that would undermine the statutory scheme.

Two claims concerned frozen embryos created through IVF from the gametes of each claimant and her former partner. Natallie Evans sought transfer of six embryos after removal of her ovaries left them as her only prospect of having a genetically related child. Lorraine Hadley sought transfer of two embryos remaining after an unsuccessful earlier transfer.

Both former partners withdrew consent to treatment and continued storage and wished the embryos to perish. The claimants relied on the Human Fertilisation and Embryology Act 1990, the Human Rights Act 1998, Convention rights and, in Ms Evans’s case, promissory estoppel.

1. The claims were dismissed. The consents specified treatment of each couple together with the named partner. After permanent separation, neither claimant and former partner was still being treated together. Treatment together was a question of fact assessed at the point of transfer.
2. Under Schedule 3 paragraph 6(3), an embryo could be used only with effective consent from each gamete provider and in accordance with those consents. Under paragraph 4, consent could be withdrawn before use. In these cases, use meant transfer of the embryo into the woman. Creation, examination, selection, freezing and storage were preparatory acts.
3. The statutory scheme rested on effective consent and the welfare of any child who might be born, including section 13(5). Each gamete provider had an equal right to withdraw consent. The scheme therefore did not create an objectionable male veto.
4. Article 2 was not engaged because an embryo was not a person with a Convention right to life. Article 8 was engaged in the parties’ private lives, but the interference was lawful, necessary to protect the rights and freedoms of all four gamete providers, and proportionate. Articles 12 and 14 were not breached.
5. Promissory estoppel could not operate against the statutory consent regime, which embodied a public policy requiring certainty and continuing consent. In any event, the assurances found as fact were not a clear and unequivocal promise that consent would never be withdrawn, and reliance and unconscionability were not established.
6. The clinics were permitted to remove the embryos from storage and allow them to perish.