Thursday, April 12, 2007

Nonreproductive Rights

This week Natallie Evans, a British cancer-survivor, was told by the Grand Chamber of the European Court of Human Rights ("Grand Chamber") that she would never be a mother. Evans, whose eggs were harvested prior to her 2001 treatment for ovarian cancer, sought the right to implant frozen embryos despite opposition from the former boyfriend whose sperm had fertilized her eggs. The Grand Chamber held that a British law requiring the consent of both genetic parents before such embryos could be implanted in a mother did not violate Evans' human rights under European law.

Four of 17 judges disagreed, in part characterizing the dispute as follows:

The applicant underwent surgery to remove her ovaries (26 November 2001). Therefore, the eggs that were extracted from her for IVF treatment were her last chance to have a genetically related child. J not only knew this fact very well, but also gave her an assurance that he wanted to be the father of her child. Without such an assurance, the applicant could have tried to seek other ways to have a child of her own. In [the relevant part of] the judgment, where the majority tries to strike a balance between the rights and interests of the applicant and of J, no weight is given to this “assurance” element, that is, to the fact that the applicant acted in good faith, relying on the assurance given to her by J. The decisive date was 12 November 2001: the date when the eggs were fertilized and six embryos created. From that moment on, J was no longer in control of his sperm. An embryo is a joint product of two people, which, when planted into the uterus, will turn into a baby. The act of destroying an embryo also involves destroying the applicant's eggs. In this sense too, the British legislation has failed to strike the right balance.

Having exhausted all avenues of legal appeal, Evans has now thrown herself upon the mercy of her former boyfriend, whose consent would allow implantation, and the British government, whose statute requires double consent. Neither appears likely to relent.


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