Bilateral consent to use sperm/embryos for reproductive purposes

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ELAG (07-07) 41.21.31.4The first concerns Natallie Evans, who lost her legal action to allow herfrozen embryos to be implanted against her former partner’s wishes. Thesecond is reminiscent of the Diane Blood case and concerns a woman whohas applied for a Declaration from the High Court in relation to theextraction and storage of her deceased partner’s sperm, for the presumedintention of using it for reproductive purposes. This second case is currentlybefore the court and few details are available at present.In the first case, the man explicitly withdrew his consent. In the second, it ispresumed that the untimely nature of the man’s death meant that thesituation, and therefore the need for discussion in advance about consent toextraction, storage and subsequent use, was not anticipated. Both casesraise questions about whether the UK law adequately addresses theinterests or, arguably, the moral rights of women who wish to have childrenusing ART in special circumstances, without the male gamete provider’sconsent.ELAG is asked to consider whether the Evans case raises any issues theHFEA ought to consider, such as any additions to its guidance or any policyrecommendations relevant to the Human Tissue and Embryos Bill. ELAGmay also wish to comment on the second case which is currently before thecourts. The Executive will keep members abreast of any significantdevelopments in relation to this case.21 st case: Evans v. The United KingdomKey facts2.12.2In October 2001, Ms Evans was diagnosed with ovarian cancer, thetreatment for which would affect her fertility. Thus, before beginning hercancer treatment, she and her then fiancé (Howard Johnston) began IVFtreatment which resulted in the creation and storage of 6 embryos.The couple’s relationship subsequently ended and in the summer of 2002Mr Johnston requested that the embryos be destroyed. Ms Evansembarked on a series of court actions in an attempt to enable the embryosto be implanted. She lost the final stage of her case in the Grand Chamberof the European Court of Human Rights on the 10 th April 2007.Legal issues2.3Under the current law, both gamete donors’ consent is required at everystage of treatment up until implantation. This was the basis for the UKcourts decision to rule against Ms Evans. The European Court of HumanRights considered the case in the context of Articles 2, 8 and 14 of thePage 2 of 7 TRIM 07/8609
ELAG (07-07) 4European Convention on Human Rights. Again, the Court found against MsEvans.2.42.52.6The judgement stated that: ‘States were entitled to a broad margin ofappreciation in this field, given the complexity of the moral and ethicalissues to which IVF treatment gave rise, on which opinions within ademocratic society might reasonably differ widely. There was nointernational or European consensus as to the point at which a sperm donorshould be allowed effectively to withdraw his consent and prevent the use ofhis genetic material.’Legal regimes similar to the UK’s apply in Denmark, France, Greece, theNetherlands, Switzerland, Belgium, Finland and Iceland.However, as outlined in the Grand Chamber judgement, other countrieshave adopted different approaches. These include, for example, onlyallowing the male to veto ongoing treatment up until the point of fertilisation(rather than implantation) or honouring the prior advance agreement ofparties who anticipate the possibility of a future dispute in relation to the fateof embryos created using their gametes. Extracts from the judgement are atAnnex A.Human Tissue and Embryos Bill2.7In response to these sorts of cases, the Government has proposedintroducing legislative provisions in a Human Tissue and Embryos Bill thatwould allow for a one year ‘cooling off’ period ‘following the withdrawal ofconsent to embryo storage by one of the persons whose gametes wereused in the creation of the embryo’ 1 . This provision is in line with an HFEAsuggestion to the Department of Health’s consultation paper: ‘Review of theHuman Fertilisation and Embryology Act’ 2 .HFEA Code of Practice2.8The HFEA’s Code of Practice (7 th edition) provides the following guidance:Providing proper informationG.5. 2: Informed consentG.5.2.1. Before any person gives consent to:1Draft Human Tissues and Embryos Bill2Cm 6989, December 2006Page 3 of 7 TRIM 07/8609
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Bilateral consent to use sperm/embryos for reproductive purposes

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