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Date:11 APR 2007

(European Court of Human Rights; 10 April 2007)

The woman and the man had jointly consented to the creation and storage of embryos shortly after the woman was diagnosed with ovarian cancer. After 6 embryos had been created and frozen, the woman had her ovaries removed. The couple later split up, and the man wrote to the clinic withdrawing his consent to use of the embryos. Under the terms of the original consent the embryos were to be destroyed if either party withdrew. In fact the embryos were preserved while the woman applied to the courts to require the man to consent. Ultimately she applied to the Grand Chamber of the ECHR, on the basis that the law preventing her from using the embryos breached her human rights under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

The case involved an irreconcilable conflict between the Article 8 rights of two private individuals: if the woman were permitted to use the embryos, the man would be forced to become a father, whereas if the man's refusal or withdrawal of consent was upheld, the woman would be denied the opportunity of becoming a genetic parent. In the difficult circumstances of the case, whatever solution the national authorities might adopt would result in the interests of one of the parties being wholly frustrated. The woman contended that her greater physical and emotional expenditure during the IVF process, and her subsequent infertility, entailed that her Article 8 rights should take precedence over the man's, but there was no clear consensus on this point. Further, the legislation in question also served a number of wider, public interests, in upholding the principle of the primacy of consent and promoting legal clarity and certainty, for example. The issues raised by the present case were undoubtedly of a morally and ethically delicate nature. In addition, there was no uniform European approach in the field. It was relevant that the Human Fertilisation and Embryology Act 1990 was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate. The court had great sympathy for the woman, who clearly desired a genetically related child above all else. However, by a majority of 14 to 4, the court concluded that the woman's right to respect for the decision to become a parent in the genetic sense should not be accorded greater weight than the man's right to respect for his decision not to have a genetically-related child with her.