Woman denied use of frozen embryos

A British woman who was left infertile following cancer treatment cannot use her frozen embryos to have a baby against the wishes of her former fiance, the European Court of Human Rights has ruled.

Natallie Evans and her former partner, Howard Johnston, had created six embryos using their eggs and sperm during fertility treatment but Mr Johnston withdrew his consent for them to be used after the couple broke up.

Ms Evans, 35, says that the embryos represent her only chance of having a child of her own and that it was a breach of her human rights to be refused permission to use them.

But the European Court yesterday upheld an earlier High Court judgement that the continuing consent of both the man and the woman is needed throughout fertility procedures.

In a landmark ruling that has implications for many other couples, the seven judges from different EU countries, including one from Britain, said that while they had "great sympathy" for Ms Evans, she could not use the embryos.

She now has one final avenue of appeal to the Grand Chamber of the court before her embryos are destroyed.

Ms Evans yesterday made an emotional appeal to Mr Johnston to change his mind.

She said: "Howard may feel it is too late for him to change his mind but it is not. Howard, please think about it. Please think what you are doing to me."

She added: "I have tried every avenue with him to try and speak to his better nature and nothing has helped.

"Of course I'm not saying he doesn't have rights, but he knew what he was going into when we first went into IVF.

"He chose to become a father the day we created the embryos, that was his choice to be a father."

Mr Johnston said he had no intention of changing his mind.

Ms Evans, from Wiltshire, was diagnosed with a pre-cancerous condition during fertility treatment she was undergoing with Mr Johnston in 2000.

She had both her ovaries removed to prevent the condition from developing, and the couple had six fertilised embryos frozen for use after she had completed her treatment.

The couple split up in 2002 and Mr Johnston withdrew his consent to the continued storage of the embryos or their use by his former girlfriend.

Under rules set down by the Human fertilisation and Embryology Authority (HFEA) both partners must consent to the use of any embryos created by them.

Ms Evans sought a High Court injunction requiring Mr Johnston to restore his consent but her application was refused in 2003 and in 2004 the Court of Appeal upheld the ruling.

Under HFEA rules on storage of such tissue, the embryos should have been destroyed last month but the move was suspended pending the European Court's ruling.

Lawyers for Ms Evans had argued that it was a breach of her human rights and a right to family life to refuse her permission to use the embyros.

But in a judgement that was disputed by two of the seven judges, the court again upheld the British rulings.

The judges said: "The Court was not persuaded by (Ms Evan's) argument that the situation of male and female parties could not be equated and that a fair balance could be preserved only by holding the male donor to his consent.

"The Court did not accept that the rights of the male donor would necessarily be less worthy of protection than those of the female, nor did it regard it was self-evident that the balance of interests would always tip decisively in favour of the female party."

It is the first time that the Strasbourg-based court has been asked to rule on issues over fertility treatment, and the judges upheld the right for British law to state that an embryo has no independent right to life.

Fertility experts welcomed the ruling, saying that it upheld the rights of men not to father children they did not want.

Dr Daniel Sokol, researcher in medical ethics at Imperial College London said: "The decision in my view is the right one. "

"Natallie Evans' inability to have children without using the frozen embryos is, without question, a tragedy, but her former partner's enforced fatherhood would have been a gross injustice."

Professor Anne McLaren from the Gordon Institute at the University of Cambridge said: "When the embryo is outside a woman's body, genetics tell us that father and mother have equal rights.

"When the embryo is inside the body, physiology tells us that the woman's right is paramount."

Baroness Ruth Deech, the former head of the HFEA, said the ruling went some way to reversing a worrying trend that put the rights of women above men.

She said: "The danger with this advanced science of IVF is that men are gradually being cast aside.

"They are being reduced to a sort of genetic blob. It's a great shame."

Mr Johnston said he had not had any doubts that his former partner's legal bid would fail.

He said: "The key thing for me was just to be able to decide when and if I start a family. That has been the basis for it."

He added: "It was something that we embarked on together, to have a child, and unfortunately that can't happen because we are no longer together.

"That really is where it ends."

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