Evans v Amicus Healthcare Ltd & Ors

Under the Human Fertilisation and Embryology Act 1990, an embryo created in vitro may be stored or used only while both gamete providers give effective consent. Either provider may withdraw consent before the embryo is transferred to a woman. An embryo is not “used in providing treatment services” merely because it is created, inspected or selected for storage.

The requirement of continuing bilateral consent proportionately protects each provider’s private life and reproductive autonomy under article 8. Parliament was entitled to adopt a clear rule without exceptions for cases of exceptional hardship. A gamete provider cannot be estopped from exercising the statutory right of withdrawal.

The appellant and the second respondent underwent IVF treatment while engaged. Six embryos created from their gametes were placed in storage before the appellant underwent surgery which removed both ovaries. After their relationship ended, the second respondent withdrew his consent to the embryos’ continued storage and use. Without them, the appellant could not bear a genetically related child.

Wall J dismissed claims for injunctions and declarations and rejected challenges under articles 8 and 14 of the European Convention on Human Rights: [2004] 2 WLR 713. The appellant challenged the construction and Convention compatibility of the consent regime in Schedule 3 to the Human Fertilisation and Embryology Act 1990. She also relied on estoppel. The central issues were whether consent remained effective, when an embryo was “used”, and whether an invariable requirement of continuing bilateral consent was proportionate.

1. Appeal dismissed. The Human Fertilisation and Embryology Act 1990 requires effective consent from both gamete providers throughout storage and until an embryo is transferred to a woman. Treatment provided to two people “together” requires them to remain united in pursuing the treatment. Once the parties ceased that joint enterprise, the consent to treatment together no longer covered implantation.

2. The statutory references to creation, storage and use describe distinct activities. For the withdrawal-of-consent provisions, an embryo is “used in providing treatment services” at the final stage, when it is transferred to the woman. Visual inspection and selection for storage are preliminary processes. Treating creation or inspection as use would remove the statutory right of withdrawal almost as soon as the embryo was created.

3. The withdrawal prevented both implantation and continued storage. The statutory policy gives primacy to informed and continuing consent. It permits either provider to vary or withdraw consent before transfer. A court should be extremely slow to recognise waiver inconsistent with that scheme. Arden LJ further held that estoppel could not prevent withdrawal because control over one’s genetic material protects individual dignity and agreements compelling its use would be contrary to public policy.

4. The consent regime interfered with the appellant’s private life under article 8, but the interference was justified. Mutual consent until implantation protects the reproductive autonomy of both providers; after implantation, the woman controls the pregnancy. Making withdrawal relevant but inconclusive would require an authority or clinic to balance incommensurable interests without a workable standard, creating arbitrariness and inconsistency. Parliament was therefore entitled to adopt a bright-line rule despite its exceptional hardship in this case.

5. There was no violation of article 14. The majority considered that the only logical distinction was between women whose partners maintained consent and those whose partners withdrew it; the same considerations that established proportionality under article 8 objectively justified that distinction. Arden LJ alternatively identified different treatment between fertile and infertile women, because an IVF genetic father may withdraw consent later than a father in natural conception, but held that distinction objectively justified.

6. A stored embryo has no independent or qualified right to life under article 2. English law does not recognise independent rights in a foetus before birth, and the claim is still weaker for a non-viable embryo in storage. Permission to appeal on article 2 was refused.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 727, dismissed the appeal, refused permission to appeal to the House of Lords and granted a stay.
2. High Court of Justice, Family Division: Wall J dismissed the claims by reserved judgment reported at [2004] 2 WLR 713 and refused permission to appeal.