Unmarried couples undergoing IVF treatment together - couples separating and men withdrawing consent to treatment and storage of embryos - no power in court to override to withdrawal of consent and permit implantation

Evans v Amicus Healthcare Ltd and others; Hadley v Midland Fertility Services Ltd and others: FD (Mr Justice Wall): 1 October 2003

In each case, the claimant had undergone in vitro fertilisation (IVF) treatment with her respective male partner from whom she had since separated permanently.

Each man withdrew consent to treatment and storage, and wished the embryos to be allowed to perish.

The claimants sought declarations, among other things, that they might lawfully be treated with their own embryos and a declaration that section 12 of, and schedule 3 to, the Human Fertilisation and Embryology Act 1990, were incompatible with their rights under articles 8, 12 and 14 of the European Convention on Human Rights.

Robin Tolson QC and Susan Freeborn (instructed by Withy King, Trowbridge) for the claimants; Kristina Stern (instructed by Bevan Ashford and Young & Lee, Birmingham) for the defendant clinics; Kambiz Moradifar and Vanessa McKinlay (instructed by Davey Son & Jones, Gloucester) for Mr Johnston; Stefano Nuvoloni (instructed by Baches, Wednesbury) for Mr Hadley; Jason Coppel (instructed by by the Solicitor, Department of Health) for the Secretary of State for Health; Dinah Rose (instructed by Morgan Cole, Cardiff) for the Human Fertilisation and Embryology Authority.

Held, refusing the applications, that there was no power to override the unconditional statutory right of either party to withdraw or vary consent to the use of embryos in connection with IVF treatment at any time before implantation in the woman; that where consent had originally been given for 'treatment together' with a named partner, that consent was not valid once the parties ceased to be together; and that, since there were sound policy reasons for requiring treatment to be consensual throughout, any interference with convention rights was lawful and proportionate.