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BMJ. 2007 April 21; 334(7598): 818.
PMCID: PMC1853201

Woman loses final round of battle to use her frozen embryos

Clare Dyer, legal correspondent

A British woman who waged a five year legal battle for the right to try to conceive using her own frozen embryos reached the end of the road this week when the 17-judge grand chamber of the European Court of Human Rights in Strasbourg ruled against her by 13-4.

Natallie Evans took her case through the UK courts and on to Strasbourg after her former partner, Howard Johnston, refused to consent to her implantation with embryos created from his sperm and her eggs.

The Human Fertilisation and Embryology Act 1990, which governs in vitro fertilisation treatment, states that both partners must consent to the use and storage of embryos and that either may withdraw consent at any time.

The six embryos were created and frozen in 2001 after Ms Evans, now aged 35, was given a diagnosis of a pre-cancerous condition of the ovaries and was about to have her ovaries removed. The couple split up in 2002, and Mr Johnston withdrew his consent for his former partner to use the embryos.

Ms Evans, who now has another partner, said: “I am distraught at the court's decision. It's very hard for me to accept that the embryos will now be destroyed and that I will never become a mother.

“I would ask Howard to consider whether he could ever permit me to have the children I so dearly long for and which he was happy to consent to when the procedure took place to create these embryos.”

Mr Johnston, 30 and unattached, said he wanted to have children when the time was right but did not want to father a child he would not bring up.

Allan Pacey, secretary of the British Fertility Society (BFS), said: “As in many countries, the UK has clearly established principles of shared responsibility from both the sperm and egg provider concerning the fate of any frozen embryos up until the point that they are transferred back into a woman.

“The BFS hopes that this situation might be avoided in the future by encouraging progress to be made in the science and practice of freezing and storing eggs. This would mean that women could bank their eggs before cancer treatment, in the same way that men are able to bank their sperm, and would avoid the need to create embryos at that time.”

Ms Evans had argued at Strasbourg that the law breached her human right to found a family. But the grand chamber held that, although the laws of some European states would have let her use the embryos, there was no Europe-wide consensus.

The judges said they did not consider that Ms Evans's desire to have a genetically related child was entitled to greater respect than Mr Johnston's decision not to have a child with her.

Tony Calland, chairman of the BMA's medical ethics committee, said: “We have every sympathy for Natallie Evans and understand why she has challenged the law. However, we welcome the fact that the European court has supported the principle of consent from all parties. Having a child is a lifelong undertaking to which both partners should be fully committed.”


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