Paternal Parental Choice and the ECHR

Last week the European Court of Human Rights rendered an important decision on paternal parental choice regarding the preservation of embryos. The case is Evans v. United Kingdom. The full text is available here and an official summary is available here.

The story is quite heartbreaking. Natallie Evans and her partner, “J”, were undergoing fertility treatment when she was diagnosed with cancer. To preserve the possibility of having a biological child, the couple created six embryos and placed them in storage. Her ovaries were then removed as part of her cancer treatment. The couple subsequently broke up. Consistent with the Human Fertilisation and Embryology Act 1990, J withdrew his consent to the continued storage or use of the embryos. Having considered but taken no alternative steps to preserve a fertilized embryo, Evans chances of ever having a biological child depended on the continued viability of those six embryos. Accordingly, she sued for injunctive relief to require J to restore his consent.

The question presented to the ECHR was threefold. First, whether the embryo had an independent right to life under Article 2, which provides that “Everyone’s right to life shall be protected by law.” The Court held that there is no European consensus on the question of when life begins, and therefore “the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.” Thus, under the European Convention each Member State is free to decide for itself whether life begins before or after birth. English law provides for the latter, and thus the embryos enjoy no Article 2 rights. (paras. 45-47).

Second, the ECHR addressed the question of whether the English law violated Evans’ right to privacy and family life under Article 8. The Court found no violation of Evans’ right to privacy, holding that each State has the freedom to regulate on this issue, and the choice should be left to the state legislatures on the question. Because English law authorizes the male donor to withdraw his consent to the use of the embryos, there is no violation of her privacy rights under Article 8. Here is an excerpt:

“Since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the Member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one… The Court is not persuaded by the applicant’s argument that the situation of the male and female parties to IVF treatment cannot be equated and that a fair balance could in general be preserved only by holding the male donor to his consent. While there is clearly a difference of degree between the involvement of the two parties in the process of IVF treatment, the Court does not accept that the Article 8 rights of the male donor would necessarily be less worthy of protection than those of the female; nor does it regard it as self-evident that the balance of interests would always tip decisively in favour of the female party…. The Court accepts that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the “bright-line” at the point of creation of the embryo. It notes in this regard that this latter solution has been adopted in a number of Member States of the Council of Europe (see paragraph 32 above). However, the central question in terms of Article 8 of the Convention is not whether a different solution might have been found by the legislature which would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article.” (para. 62, 66, 68)

Finally, the Court addressed the question of whether Evans was discriminated against vis-à-vis other women who can conceive without assistance. Evans argued that other women have the freedom under English law to determine the future of their embryo, i.e. abortion or birth. Her choice, by contrast, was at the whim of the sperm donor. The United Kingdom argued there was no discrimination because English law treats women who conceive through intercourse the same as women who have a fertilized embryo implanted in their uterus. The ECHR again rejected Evans’ argument, recognizing that “Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.” (para. 73).

The ECHR’s decision in Evans is a significant application of the margin of appreciation doctrine under the European Convention. Can you imagine the possible ramifications for constitutional comparativists in the United States? Would it mean each state should be free to decide when life begins? Would it allow states to grant greater rights to fathers than they currently enjoy on issues involving abortion, embryology, fertilization and birth? If the European Convention gives Member States wide discretion to regulate on such matters, should our constitutional approach implement a similar approach of legislative deference?

I am no fan of constitutional comparativism, but if advocates are going to warmly embrace ECHR decisions in other constitutional contexts (i.e., Lawrence), should they not do so here? As Justice Ginsburg said last year at the ASIL annual meeting we should look abroad for “negative examples” on matters such as abortion. Here is one such example available for comparative reference.

Related posts:
Roper v. Simmons and Our Constitution in International Equipoise