Submitted by LLM (Hons) Graduate Megan Edwards.
This module is available for masters students as well as final year undergraduate LLB students.
"The judgment in Evans v Amicus Healthcare  EWCA Civ 727 remains unsatisfactory and underscores"
Critically discuss the above statement by reference to relevant legal authority and secondary literature.
In October 2001, Natallie Evans (Evans) was diagnosed with a pre-cancerous condition of her ovaries during a routine fertility treatment appointment and was informed that she would need a complete ovariectomy. After having tried and failed to get pregnant for over a year with her fiancé Howard Johnston (Johnston), she was offered one cycle of in vitro fertilisation (IVF) treatment in the same appointment. After asking whether it would be possible to freeze her eggs unfertilised she was advised that the clinic in question did not have the facilities to do so. Adding to this, she was assured by Johnston that there was no need to do so, as they could freeze embryos fertilised using his sperm since they were going to stay together. A few weeks later in November, 11 eggs were harvested from Evans and fertilised with sperm from Johnston, from which 6 embryos were created and put into storage. 2 weeks later Evans underwent the procedure for removal of her ovaries, and was told to wait at least two years before attempting an embryo transfer.
In the UK, The Human Fertilisation and Embryology Act 1990 (as amended by the Human Fertilisation and Embryology Act 2008) (hereafter referred to as HFEA 1990), regulates the storage and use of gametes and embryos in assisted reproductive technologies (ARTs). Schedule 3 HFEA controls the issue of consent with regards to this, and in coordination with the supplementary Code of Practice, provides that consent to storage and use must be ‘effective’. Thus, where a party withdraws consent to the further storage of their gametes or embryos, treatment clinics must give effect to this by way of disposing of the embryos.
Following the subsequent breakdown of the relationship between Evans and Johnston, in July 2002 Johnston wrote to the clinic advising them of this and withdrawal of his consent for the continued storage of the embryos. Thus, his consent could no longer be considered effective and so Evans initiated proceedings in order to prevent disposal of the embryos.
This essay will consider the social, legal and cultural context in which Evans’ case, Evans v Amicus Healthcare Ltd was decided and the implications of the judgment. First, the issues raised will be considered. The idea of consent with regards to the law and its relationship with gender will then be explored, before turning to analyse the idea that the judgment reached in Evans discriminates women based on sex, an argument unexplored in the case. Finally, it will be concluded that not only does the judgment remain unsatisfactory, but that it also underscores the need for the regulatory framework governing ARTs to be revised and updated.
THE ISSUES WITH EVANS
Evans remains the cornerstone case concerning issues of ARTs where gamete progenitors are in dispute over the disposition of embryos. In Evans’ original submission to the High Court, she contended that Johnston should be prevented from varying or withdrawing his consent to the storage and use of the embryos and that failure to allow her to use the embryos in future was a violation of her human rights under Articles 2, 8, 12 and 14 of the European Convention of Human Rights (ECHR). Her case failed on all counts and she subsequently appealed. This essay will focus specifically on the arguments related to Articles 8 and 14 ECHR.
While the judge at first instance found that Evans’ Article 8 ECHR right to respect for her private life had indeed been engaged, he held that Johnston’s parallel right was of equal weight, in line with what the statutory scheme intended. The Court of Appeal (CA) agreed with this finding. This essay contends however that appropriate consideration was not given to the analysis of this right in accordance with Article 14 ECHR.
Article 14 provides that all rights set forth in the ECHR shall be secured without discrimination on a number of grounds, one of which is sex. It is unique in that it can only be asserted where another Convention right is engaged. Thus, in finding that Evans’ Art 8 rights were in fact breached, it follows that Art 14 is engaged. However, the discrimination argument was largely unexplored by the court since they held that the Art 8 breach was justified as necessary and proportionate and thus Johnston was ‘entitled to withdraw his consent with the effect that withdrawal was to prevent both the use and continued storage of the embryo fertilised by the sperm’.
CONSENT: THE ‘BRIGHT-LINE’
The HFEA 1990 provides that ‘effective consent’ is consent which has not been withdrawn.
Any consent given for the purpose of treatment under the Act must also be in writing and signed. What’s more, paragraph 6(3) of Schedule 3 to the Act provides that any embryo created in vitro ‘must not be used for any purpose unless there is consent by each relevant person in relation to the embryo to the use for that purpose (…)’. Gamete providers therefore also have the right to withdraw or vary the terms of their consent at any time up until the embryo has been used in treatment services. Thus, consent from both gamete providers is required up to the point of implantation and so the fact Johnston had withdrawn his consent to further storage and use of the embryos to treat Evans meant she inevitably would face an uphill battle in convincing the Human Fertilisation and Embryology Authority, and the courts, otherwise.
The law here can be denoted as a ‘bright-line’ rule in the sense that it is clearly defined and objective in its scope. The ‘bright-line’ rule however, and the accompanying bright-line approach taken by the courts in their interpretation of the Act, is arguably a problematic one and ‘needs to be considered with caution’. It leaves little room for interpretation and thus should only be employed in cases in which there are no issues of uncertainty. In the context of Evans, this was undoubtedly not the case, particularly considering the circumstances in which initial consent was given.
Is ‘effective consent’ effective?
Beauchamp and Childress maintain that ethical conduct is underpinned by four basic principles; autonomy, beneficence, non-maleficence and justice. They argue that, at a minimum, autonomy ‘encompasses self-rule that is free from both controlling interference by others and limitations that prevent meaningful choice’. Autonomy therefore ‘obligates professionals in healthcare … to disclose information, to probe for and ensure understanding and voluntariness, and to foster adequate decision making’ while also requiring that freely made decisions are not restricted by others.
Harris-Short contends that consent should be considered an expression of autonomous will. Paragraph 3 to Schedule 3 HFEA 1990 gives effect to this somewhat in that it stipulates a person must be given the opportunity ‘to receive proper counselling about the implications of taking the proposed steps’ concerning fertility treatment before they can give consent. Neither Evans nor Johnston however were given such counselling. Instead, when Evans enquired about the option of egg freezing she was told the clinic did not provide such services. Moreover, in his evidence Johnston also made the point that neither of them were given the opportunity to discuss their options privately with clinic staff. Thus, can it be said that the choices made by both parties were free from constraint and limitations? Both parties were not given ample opportunity to be fully informed and thus their ability to make a fully autonomous decision was incapacitated. Consequently, ‘the robustness of the consent obtained from each party is surely open to question.’
In order to determine whether consent can be deemed ‘effective’ or not, especially in the context of assisted reproduction cases in which one party has simultaneously more to lose or gain than the other, a holistic approach should be employed by the courts. This would involve analysing the situation in which consent was given as a whole, rather than merely considering whether consent has been withdrawn or not. In the present case, all the decisions made and forms signed were done so in the same appointment in which Evans had been delivered the news about the pre-cancerous condition of her ovaries and the fact they would need to be removed. Bearing in mind the fact this all occurred within the span of 90 minutes, it perhaps fair to say that life-changing decisions were made in an overwhelming environment.
An interesting point to note here is the language used to refer to the relationship between Evans and Johnston both in the judgment and literature written about it. Johnston is consistently referred to as Evans’ ‘partner’, but they were in fact engaged to be married. While it is understood the term ‘fiancé’ is perhaps not considered a legal one, the word partner can equally refer to a boyfriend. However, being engaged to be married arguably indicates a greater level of commitment than that found between boyfriend and girlfriend. Of course, this is not always the case but it is somewhat fair to say in our society an engaged couple are considered to be more serious than those who are not and that where someone has proposed then it is likely they foresee a future with the other person. What’s more, a lot of the time that life or future, especially in heterosexual relationships, includes children.
Thus, the fact the judgment repeatedly uses the term ‘partner’ glosses over the fact they were engaged, perhaps to downplay the significance of their relationship, as well as the weight of the assurances Johnston made during the consultation in which initial consent was given. This arguably only works in Johnston’s favour, since it minimises his role in the situation. The court therefore in its judgment created a classic narrative of a woman who wants too much, even if unintentionally. The message that women want to have it all to the detriment of men is one that is ‘far removed’ from reality, since women are in fact penalised for wanting pregnancy and motherhood, as is evident from this case. The argument could therefore be made that the Evans judgment is in fact complicit in compounding the suffering of and discrimination against women.
Moreover, framing Evans’ decision as being a matter of choice in the context of her making a choice to have a child and his choice not to, misses the point that her choices were already restricted. Freedom of choice is autonomy enhancing only if a person has a range of valuable options to choose from. Evans had been trying to get pregnant for 7 years to no avail, and thus the fact no egg-freezing facilitates were available meant her only option to preserve her chance of having a genetically related child was to fertilise her eggs using Johnston’s sperm to create embryos she could later use.
It is important to note here that the option of using donor sperm was in fact not one available to her, since the point was made that had she expressed a desire to do so, the clinic would have ‘been bound to enquire into why’. Thus, either Johnston’s sperm was used, or Evans would invite unwanted and arguably unnecessary scrutiny into her relationship and private life. Such a request to use donor sperm would only compound what was an already emotional and burdensome situation. Consequently, whereas Johnston had multiple options in that he could consent to use of his sperm to create embryos, and could later withdraw or vary the terms of his consent, Evans was arguably presented with only one viable option to preserve her chance of genetic motherhood; use of his sperm. The circumstances were such that the sole decision-maker in whether Evans would ever have the chance to have a genetically related child was in fact Johnston.
Withdrawal of consent as veto of initial mutual consent
When the case came before the courts it attracted much media scrutiny and public sympathy.
The woman behind the original legislative framework, Mary Warnock, even went as far to state that law in the area was in fact ‘ambiguous’ and that a situation such as that of the Evans case had not been envisaged. The CA held that the ‘clear policy of the Act is to ensure continuing consent from the commencement of treatment to the point of implant’ and that, taking into account the fact consent can be varied or withdrawn, ‘the court should be extremely show to recognise or create a principle of waiver that would conflict with the Parliamentary scheme’. The point could be made here however that permitting the withdrawal of consent up to the point of implantation effectively gives one party a veto in the life of the other where consent was initially mutual. Since both Evans and Johnston were initially united in the pursuit of fertility treatment, his subsequent withdrawal meant that she now had to face the reality she would never be able to have a genetically-related child of her own and that the embryos would be destroyed. Her consent effectively no longer mattered without his.
In the aftermath of the case’s progression through the courts the British Medical Association in their submission to the Parliamentary Select Committee on Science and Technology advised that it was time for the 1990 Act to be reviewed and updated.  Considering the issues presented by the consent provisions of the Act as highlighted by the Evans case, they recommended that before embryos can be destroyed, consent should be given by both gamete providers. Where no agreement can be reached, the embryos should then be kept in storage until the end of a statutory period recommended to be five years, after which they would be disposed of.
The Human Fertilisation and Embryology Act 2008 thus updated and amended numerous provisions of the 1990 Act, one of which was to introduce a ‘cooling-off’ period in line with the above advice whereby storage of embryos remains lawful after one gamete provider withdraws consent. It was hoped that the amendments introduced in 2008 would give provide for more clarity and thus, should a similar situation arise again, it could be resolved in an equitable way. However, this has not been the case and this essay maintains that the updates to the HFEA 1990 did not go far enough. Rather than the 5 year ‘cooling-off’ period as advised by the BMA, the new provision allows for only 12 months. Moreover, the rest of the consent provisions were hardly amended at all. Thus, while it could be argued a year-long cooling period might allow for some disputes to be resolved privately between gamete providers, it will not help where those disputes evolve into something that cannot be merely negotiated or mediated between two parties. Such a provision would not have been of any help to Evans, nor is it likely that should the same dilemma presented in Evans come before the courts again the result would be any different. It remains the case that one parties consent or withdrawal of such can veto the effective consent of the other party.
In Evans, the court exhibited a blatant disregard of Evan’s decision-making capacity and turned a blind eye to the role played by gender and medical paternalism in determining whether the breach of Evans’ Article 8 ECHR right was justified. Such a dismissal only serves to exacerbate the oppression of women. The ‘consenting procedures in this case were such as potentially to leave Ms Evans and Mr Johnston in a position of considerable uncertainty about the implications of their treatment’, and it is argued that the same ambiguity remains regardless of the amendments made in 2008. The fact that no criticism of the clinic was made as a result of adopting of the bright-line approach is also questionable.
It is therefore argued that despite updates, the law governing the use of ARTs is still both morally and ethically problematic since one gamete provider can just cancel out the consent of another by withdrawing their consent. The fact judges are constrained by this ‘bright-line’ rule resulted in the unsatisfactory judgment of Evans, which therefore underscores the need for further reform. While it may be said that balancing both parties’ interests with regards to consent and their respective rights is treating them equally, this is only formal. Thus, without consideration of the wider context in which decisions were made it cannot be said that the law allows for substantive equality, which amounts to true equity, fairness and justice.
Women’s Human Rights and Justice
Cherry contends that throughout history women have not had control ‘over their physical selves’ and that this still rings true today. As a result, the idea of ‘choice’ concerning what women do with their bodies has become a focal point of reproductive justice and feminism. She goes on however to maintain that reliance on ideals of choice have created problems in which ‘substantive outcomes are subordinated to process neutrality … even though we know that formal equality has often allowed deep substantive oppression and subordination to continue’. The case of Evans is an example of such subordination of a substantive outcome to formal equality. To this end, Lind agrees in stating that the modus operandi of the HFEA 1990 is one of formal equality and thus the CA failed to give the equality argument a fair chance by perpetuating cultural stereotypes and gender roles in an attempt to ‘straight-jacket women into a claim that requires male equivalence when there is no such equivalence’.
Evans alleged that as an infertile woman she was being treated differently from fertile women under the HFEA 1990, which was discriminatory and thus in contravention of her Article 14 ECHR right in conjunction with Article 8. In considering this argument, the CA judges adopted 2 approaches; one which was held by the majority judges and reasoned that the difference was in fact between those women seeking fertility treatment whose partners had withdrawn consent, and the other noted by Arden LJ which agreed with Evans’ submission in holding that the difference was between those women who could conceive naturally and those who could not. In both situations the court held that the HFEA 1990 was in fact discriminatory but again it was justified for the same reasons the breach of Evans’ Article 8 rights were justified.
While it is agreed that such differences are discriminatory, it is argued that the courts did not pay appropriate attention to the argument of discrimination. Rather than focusing on the differences between women, they should have looked at the broader spectrum of both sex and gender and the discriminatory elements which of such which are clearly present in the case. As outlined above, there were clear differences in the options presented to Evans and Johnston. It was suggested in the High Court (HC) judgment, that a situation in which a man had testicular cancer and presented himself for fertility treatment was analogous to that of Evans, and such suggestion was not challenged by the CA. However, this is a pure false equivalency. Had the situations been reversed, Johnston would have had the option to freeze his unfertilised sperm and thus would undoubtedly never have had to face the same challenges as Evans. Forcing a woman to carry a pregnancy for 9 months is not the same as using a man’s sperm to create an embryo which is then implanted in a willing woman’s uterus who will carry a pregnancy to term herself for said man.
Colker maintains that ‘reproductive differences between women and men should be relevant to the disposition of disputes’. Yet, it is precisely these reproductive biological differences which are both unaccounted for and overlooked by the HFEA 1990 and the courts. In their analysis of Evans, the judges were very specific in their examination of discrimination and in doing so seemed to disregard the blatant sex discrimination evident on the face of the facts as outlined above between Evans and Johnston’s situations. Thus, it is the opinion of this essay that it is apparent a discrimination claim with regards to the operation of the HFEA 1990 can be grounded in the argument of discrimination based on the difference in sex and gender between men and women. Dismissal of such an argument is led to the unsatisfactory judgment delivered in Evans, and consequently underscores the need to revise the HFEA 1990 in order to ensure substantive equality between men and women.
Biological and Reproductive Realities
In Evans, it was rationalised that deciding in favour of Johnston did not mean that Evans could never be pregnant; she still could carry a pregnancy but would just require donor eggs to do so. However, this is a fallacy and ignores reproductive capabilities and reality. The chances of getting pregnant and then carrying a pregnancy to term diminish as a woman gets older. In a study carried out in Canada, it was reported that where a woman has been infertile for 3 years or more, each year in age reduced the probability of getting pregnant by 9%. Moreover, a study on IVF patients conducted by Schröder in Germany found that the expected cumulative pregnancy rate for those women over 35 years and older was 44.8% after 4 cycles of IVF treatment. A similar study in the Netherlands reported that the probability of a pregnancy leading to a healthy baby starts to fall in 31 years, and after 12 cycles of IVF treatment the probability of a women becoming pregnant this age or older was 0.54.
Bearing in mind that Evans was 29 when she initially started treatment and notwithstanding the fact she eventually appealed to the European Court of Human Rights which delivered its final judgment in 2007, by the time the judgment was delivered by the CA she would have been around 32. Factoring in her infertility which would mean any chances of her getting pregnant would have to be aided through use of ARTs which are not only very expensive but time consuming, the chances of her being able to get pregnant at all without making use of her embryos as emphasised as a possibility for her by the court, would have been very slim in actuality.
Alghrani contends that the argument that women should have the decisive say in gamete disputes such as the situation in Evans because they ‘have given more to the IVF process’ is unconvincing since differences between men and women stem from biology and thus men should not be ‘penalised because it is easier for them to provide gametes than for women’.
This essay however disagrees and maintains that it is discounting this simple fact that results in the law producing inequities and unsatisfactory judgments as in Evans. Women have consistently been marginalised, excluded and subordinated in all facets of society on the basis of their gender. The law is no exception here either, with MacKinnon noting that harms and violation of women tend not only to be ‘legally and socially rationalised, officially winked at, or in some instances formally condoned’ but in general ‘overlooked’. Thus, the fact that it is indeed easier for a man to produce gametes should not be overlooked, as it was in Evans. Rather the consideration of such a fact should be central to the decision-making process.
The reality is that everyday life is gendered and thus the influence of gender and overarching patriarchal norms in healthcare as well as judicial decision-making cannot be underestimated. Equality goes beyond treating people the same, this is merely formal. True, substantive equality involves recognising and taking account of difference. In Evans, differences were largely ignored in balancing the respective reproductive rights of both parties as being equal. However, Johnston has limitless opportunities to have biological children despite the judgment, whereas Evans now has none.
The CA, constrained by the bright-line approach enshrined in the HFEA 1990, was not able to analyse the case in a manner which gave proper consideration to the context in which decisions were made as well as being attentive to gender, reproductive and biological realities. The case therefore highlights the problems that exist in the legislative framework governing the use of ARTs with respect to these issues. Despite amendments to the law in 2008, holes still exist which would allow for the same thing to happen again. It is therefore argued that the CA’s analysis of the Evans case was for the most part unsatisfactory and the law needs to be revised to ensure substantive equality.
Table of Legislation (UK)
The Human Fertilisation and Embryology Act 2008
The Human Fertilisation and Embryology Act 1990
Table of Cases (UK)
Evans v Amicus Healthcare Ltd  EWCA Civ 727,  3 WLR 681
Evans v Amicus Healthcare Ltd and others  EWHC 2161 (Fam),  2 WLR 713
Table of Cases (EU)
Evans v United Kingdom (2008) 46 EHRR 34
European Statutory Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 1 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 5
Alghrani A, Regulating Assisted Reproductive Technologies: New Horizons (Cambridge University Press 2008)
Beauchamp T and Childress J, Principles of Biomedical Ethics (OUP 2012)
MacKinnon C, Are Women Human? And Other International Dialogues (Harvard University Press 2007)
McColgan A, Women Under the Law: The False Promise of Human Rights (Longman 1999)
Harris-Short S, ‘Evans v Amicus Healthcare Ltd and others (Secretary of State for Health and another intervening’ in Rosemary Hunter, Clare McGlynn and Ericka Rackley (eds) Feminist Judgments: From Theory to Practice (OUP 2010)
Cherry A, ‘Choosing Substantive Justice: A Disucssion of ‘Choice’, ‘Rights’ and the New Reproductive Technologies’ (1997) 11 New Reproductive Technologies 431
Colker R, ‘Pregnant Men Revisited Or Sperm is Cheap, Eggs are Not’ (1996) 47 Hastings Law Journal 1063
Schröder A, ‘Cumulative Pregnancy Rates and Drop-Out Rates in a German IVF Programme: 4102 cycles in 2130 patients’ (2004) 8(5) Reproductive BioMedicine Journal 600
Sheldon S, ‘Evans v Amicus Healthcare: Revealing Cracks in The Twin Pillars?’ (2004) 16(4) Child and Family Law Quarterly 437
Van Nord-Zaadstra B et al, ‘Delaying childbearing: effect of age on fecundity and outcome of pregnancy’ (1991) 302 British Medical Journal 1361
Consultation Reports and Guidance
House of Commons Science and Technology Committee, Human Reproductive Technologies and the Law: Fifth Report of Session 2004-05 Volume II Oral and Written Evidence (2005, HC 7-II)
Human Fertilisation and Embryology Authority, Code of Practice (8th edn, 2009)
Royal Commission on New Reproductive Technologies, Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (Canada 1993)
Online News Reports
BBC News, ‘Fertility laws branded “ambiguous”’ (BBC News England, 24 August 2002) <http://news.bbc.co.uk/1/hi/england/2213640.stm> accessed 14 May 2020
 Human Fertilisation and Embryology Authority, Code of Practice (8th edn, 2009).   EWCA Civ 727,  3 WLR 681.  The term ‘sex’ is used to refer to biological differences, whereas ‘gender’ is based on the construct of gender-roles in society.  Evans (CA) (n 2) .  The Human Fertilisation and Embryology Act 1990, sch 3 para 1(3) (HFEA 1990).  Ibid, sch 3 para 1(1).  HFEA 1990 (n 5), sch 3 para 4.  Sonia Harris-Short, ‘Evans v Amicus Healthcare Ltd and others (Secretary of State for Health and another intervening’ in Rosemary Hunter, Clare McGlynn and Ericka Rackley (eds) Feminist Judgments: From Theory to Practice (OUP 2010) 72.  Tom Beauchamp and James Childress, Principles of Biomedical Ethics (OUP 2012).  Ibid 101.  Beauchamp and Childress (n 9) 107.  Harris-Short (n 8).  Evans v Amicus Healthcare Ltd and others  EWHC 2161 (Fam),  2 WLR 713 .  Sally Sheldon, ‘Evans v Amicus Healthcare: Revealing Cracks in The Twin Pillars?’ (2004) 16(4) Child and Family Law Quarterly 437, 447.  Aileen McColgan, Women Under the Law: The False Promise of Human Rights (Longman 1999) 7.  Evans (HC) (n 13) .  BBC News, ‘Fertility laws branded “ambiguous”’ (BBC News England, 24 August 2002) <http://news.bbc.co.uk/1/hi/england/2213640.stm> accessed 14 May 2020.  Evans (CA) (n 2) .  House of Commons Science and Technology Committee, Human Reproductive Technologies and the Law: Fifth Report of Session 2004-05 Volume II Oral and Written Evidence (2005, HC 7-II).  Ibid.  HOC Committee (n 19).  The Human Fertilisation and Embryology Act 2008, sch 3 para 7.  Ibid.  Sheldon (n 14) 447.  April Cherry, ‘Choosing Substantive Justice: A Discussion of ‘Choice’, ‘Rights’ and the New Reproductive Technologies’ (1997) 11 New Reproductive Technologies 431, 433.  Ibid 435.  Craig Lind, ‘Evans v United Kingdom” Judgements of Solomon: Power, Gender and Procreation’ (2006) 18(4) Child and Family Law Quarterly 576, 587.  Evans (CA) (n 2) .  Ibid .  Evans (CA) (n 2) .  Evans (HC) (n 13) .  Ruth Colker, ‘Pregnant Men Revisited Or Sperm is Cheap, Eggs are Not’ (1996) 47 Hastings Law Journal 1063.  Evans (CA) (n 2) .  Royal Commission on New Reproductive Technologies, Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (Canada 1993).  Annika Kristen Schröder, ‘Cumulative Pregnancy Rates and Drop-Out Rates in a German IVF Programme: 4102 cycles in 2130 patients’ (2004) 8(5) Reproductive BioMedicine Journal 600.  Boukje van Nord-Zaadstra et al, ‘Delaying childbearing: effect of age on fecundity and outcome of pregnancy’ (1991) 302 British Medical Journal 1361.  Amel Alghrani, Regulating Assisted Reproductive Technologies: New Horizons (Cambridge University Press 2008) 92.  Catherine MacKinnon, Are Women Human? And Other International Dialogues (Harvard University Press 2007) 36.