EHRM, 10-04-2007, nr. 6339/05

The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of the philosopher Dame Mary Warnock DBE to ‘consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.’

The Committee reported in July 1984 (Cmnd 9314). At that time, the technique of freezing human embryos for future use was in its infancy, but the Committee noted that it had already occurred and had resulted in one live birth, and recommended that clinical use of frozen embryos should continue to be developed under review by the licensing body (§ 10.3 of the Report). It went on, however, to recognise the potential problems arising from the possibility of prolonged storage of human embryos, and recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority (§ 10.10). It further recommended that where, as a result, for example, of marital breakdown, a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the storage authority (§ 10.13). Consistent with its view that there should be no right of ownership in a human embryo (§ 10.11), the Committee did not consider that one party to the disagreement should be able to require use of the embryo against the wishes of the other.

The Warnock Committee's recommendations, so far as they related to IVF treatment, were set out in a Green (consultation) Paper issued for public consultation. It was noted in the Green Paper (at § 35) that few comments had been received about the Committee's recommendation that the storage authority should assume the rights of use or disposal of an embryo where there was no agreement between the couple, and stressed that although this situation was unlikely to arise very often, it was important that there should be a ‘clear basis’ for its resolution.

After receipt of representations from interested parties, the proposals on IVF were included in a White Paper (report), Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper recorded the Warnock Committee's recommendation that the right of use or disposal of a frozen embryo should pass to the storage authority in the event of disagreement between the couple concerned (§§ 50–51), but continued:

The White Paper indicated the Government's decision that the maximum storage period for embryos should be five years (§ 54). Then, in a section entitled ‘Donor's Consent’, it set out the policy that a donor should have the right to vary or withdraw consent to the transfer of an embryo to a woman at any time before the embryo was used:

Following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. The Bill substantially reflected the terms of the White Paper. The provisions dealing with consent did not prove controversial during its passage through Parliament.

In R. v. Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)[2003] UKHL 13, Lord Bingham described the background to and general approach of the 1990 Act as follows:

By section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3(1) is an offence (created by section 41(2)(a) of the Act).

By section 14(4) of the Act, ‘the statutory storage period in respect of embryos is such period not exceeding five years as the licence may specify’. This provision was amended by the Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996, which came into force on 1 May 1996, and which provide, inter alia, that where, in the opinion of two medical practitioners, the woman in whom the embryo may be placed, or, where she is not one of the persons whose gametes are used to create the embryo, one of those persons, is, or is likely to become, completely infertile prematurely, the storage period is extended until that woman is 55. Where, in the opinion of a single medical practitioner, the woman in whom the embryo may be placed, or one of the gamete providers, has or is likely to have significantly impaired fertility or has a significant genetic defect, the storage period is extended to 10 years, or until that woman is 55, whichever period is the shorter.

Both of the persons whose gametes are used to create the embryos are required to confirm in writing that they do not object to extended storage for the purposes of future treatment. The woman in whom any such embryo may be placed must be under 50 when storage commences.

By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with ‘consents to use gametes or embryos’, shall be complied with. The High Court and Court of Appeal held, in the proceedings brought by the applicant (see paragraphs 20–27 above) that, as a matter of the construction of Schedule 3, ‘the embryo is only used once transferred to the woman’.

Schedule 3 provides:

The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley (see paragraph 25 above) as follows:

On the basis of the material available to the Court, including the ‘Medically Assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States’ (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics' ‘Questionnaire on Access to Medically Assisted Procreation’ (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; while in Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.

The storage of embryos, for varying lengths of time, appears to be permitted in all the above States where IVF is regulated by primary or secondary legislation, except Germany and Switzerland, where in one cycle of treatment no more than three embryos may be created which are, in principle, to be implanted together immediately, and Italy, where the law permits the freezing of embryos only on exceptional, unforeseen medical grounds.

In Denmark, France, Greece, the Netherlands and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in primary legislation. It appears that, as a matter of law or practice, in Belgium, Finland and Iceland there is a similar freedom for either gamete provider to withdraw consent before implantation.

A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in the absence of a specific contrary agreement by the couple, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria and Estonia the man's consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man's right to revoke his consent is recognised only where he is married to and living with the woman. In Germany and Italy, neither party can normally withdraw consent after the eggs have been fertilised. In Iceland, the embryos must be destroyed if the gamete providers separate or divorce before the expiry of the maximum storage period.

In addition, the parties referred the Court to case-law from the United States and Israel. The field of medically assisted reproduction is not regulated at federal level in the United States and few States have introduced laws concerning the subsequent withdrawal of consent by one party. It has, therefore, been left to the courts to determine how the conflict between the parties should be resolved and there are a number of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.

In Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:

In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, ‘in the event that we … are unable to make a decision regarding the disposition of our frozen pre-zygotes’, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.

In A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy ‘forced procreation is not an area amenable to judicial enforcement’. Rather, ‘freedom of personal choice in matters of marriage and family life’ should prevail.

This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them either to be donated to another couple or preserved for use by him with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, having taken into account the fact that the father was not infertile, the court subscribed to the view taken in the A.Z. case regarding public policy and ordered that the wife's wishes be observed.

Finally, in Litowitz v. Litowitz, (48 P. 3d 261, 271) the woman, who had had children before undergoing a hysterectomy, wished to use embryos created with her ex-husband's sperm and donor eggs for implantation in a surrogate mother. The ex-husband, however, wished the embryos to be donated to another couple. At first instance and on appeal the husband's view prevailed, but in 2002 the Supreme Court of Washington decided by a majority to adopt a contractual analysis and to honour the couple's agreement with the clinic not to store the embryos for more than five years.

In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband's sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.

The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife's egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man's fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman's interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband's consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man's consent was required before the obligation of parenthood could be imposed on him.

The applicant accepted that there should be a regulatory scheme determining the use of reproductive medicine, but submitted that it was neither necessary nor proportionate to permit of no exceptions in the provision of a veto on the use of embryos to either gamete provider.

The female's role in IVF treatment was much more extensive and emotionally involving than that of the male, who donated his sperm and had no further active physical part to play in the process. The female gamete provider, by contrast, donated eggs, from a finite limited number available to her, after a series of sometimes painful medical interventions designed to maximise the potential for harvesting eggs. In the case of a woman with the applicant's medical history, she would never again have the opportunity to attempt to create a child using her gametes. Her emotional and physical investment in the process far surpassed that of the man and justified the promotion of her Article 8 rights. Instead, the 1990 Act operated so that the applicant's rights and freedoms in respect of creating a baby were dependent on J's whim. He was able to embark on the project of creating embryos with the applicant, offering such assurances as were necessary to convince her to proceed, and then abandon the project when he pleased, taking no responsibility for his original decision to become involved, and under no obligation even to provide an explanation for his behaviour.

The impact of the consent rules in the 1990 Act was such that there would be no way for a woman in the applicant's position to secure her future prospects of bearing a child, since both a known and an anonymous sperm donor could, on a whim, withdraw consent to her use of embryos created with his sperm. Part of the purpose of reproductive medicine was to provide a possible solution for those who would otherwise be infertile. That purpose was frustrated if there was no scope for exceptions in special circumstances.

Whether the role of the State was analysed in terms of a positive obligation to take reasonable and appropriate measures to secure the individual's Article 8 rights, or as an interference requiring justification, it was clear from the case-law that a fair balance had to be struck between the competing interests. There was no necessity for legislation which failed to recognise that exceptional situations, requiring different treatment, might arise. This was a conflict primarily between the respective rights of two private individuals, rather than between the State and an individual, and the proper way to determine a conflict between individuals was by recourse to a court for judicial assessment of the respective positions. In the present case, the clinic was ready and willing to treat the applicant, and should be permitted so to do. The Chamber had overstated the obligation for which the applicant contended: she did not go so far as to claim a duty on the part of the State to ensure that she be permitted to proceed.

A fair appraisal of the Nachmani case (see paragraph 48 above) and the case-law from the United States of America (paragraphs 42–47 above) provided support for her argument. Nachmani was the closest case on its facts to her own, but the applicant's case was stronger, since she wished to have the embryos implanted in her own uterus, not that of a surrogate. All the decisions from the United States appeared either to apply, or at least to recognise, a test whereby there was a balance of rights and/or interests in the embryos. Moreover, only one of these cases was decided on the basis of a conflict between public policy and private rights, and the case-law therefore supported the applicant's contention that there was no public interest at stake. As for the position within the Council of Europe, the applicant pointed out that the Chamber appeared to have relied on material which was not available to the parties, although she accepted that there was no consensus in Europe as to whether, in the general run of cases, the man's consent could be revoked either at any time before implantation, or only up to the point of fertilisation. However, the applicant invited the Court to consider what evidence there was as to how any Council of Europe State would determine a case with the same facts as the present dispute. Just how ‘bright-line’ were the rules even within the four States recorded in the Chamber judgment as permitting withdrawal of consent at any time up to implantation?

While the applicant accepted that, since the statutory maximum storage period had expired by the time of the hearing before the Grand Chamber, she was no longer the victim of J's direction to the clinic to remove the embryos from storage, she submitted that it was neither necessary nor proportionate to give such a power to a single gamete provider. Human embryos were special: this was the underlying philosophy of the 1990 Act. Yet the Act permitted only one of the couple on a whim to destroy the embryos created by both; even a family pet enjoyed greater protection under the law.

The Government argued that the Chamber had been incorrect in referring to J's having withdrawn the consent he had given to the use of his gametes or to the applicant's having sought to hold him to that consent. In fact, J had never consented to the treatment which the applicant wished to receive, and his consent had always been limited to treatment of the applicant together with him; in practical terms, the consent was predicated on their relationship continuing. When the relationship broke down and the applicant wished to continue with the treatment by herself, the consent which J had given did not extend to the new situation.

The Government contended that the 1990 Act served to promote a number of inter-related policies and interests — the woman's right to self-determination in respect of pregnancy once the embryo was implanted; the primacy of freely given and informed consent to medical intervention; the interests of any child who might be born as a result of IVF treatment; the equality of treatment between the parties; the promotion of the efficacy and use of IVF and related techniques; and clarity and certainty in relations between partners.

States were entitled to a broad margin of appreciation in this field, given the complexity of the moral and ethical issues to which IVF treatment gave rise, on which opinions within a democratic society might reasonably differ widely. There was no international or European consensus as to the point at which a sperm donor should be allowed effectively to withdraw his consent and prevent the use of his genetic material. Moreover, a wide margin should be applied since the national authorities were required to strike a balance between the competing Convention interests of two individuals, each of whom was entitled to respect for private life.

The fact that the law allowing either party to withdraw his or her consent up until the point of implantation of the embryo did not permit of exception (a ‘bright line’ rule), did not in itself render it disproportionate. If exceptions were permitted, the principle which Parliament legitimately sought to achieve, of ensuring bilateral consent to implantation, would not be achieved. Complexity and arbitrariness would result, and the domestic authorities would be required to balance individuals' irreconcilable interests, as in the present case.

It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant's right to respect for her private life. The Grand Chamber agrees with the Chamber that ‘private life’, which is a broad term encompassing, inter alia, aspects of an individual's physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world (see Pretty, cited above, § 61), incorporates the right to respect for both the decisions to become and not to become a parent.

It must be noted, however, that the applicant does not complain that she is in any way prevented from becoming a mother in a social, legal, or even physical sense, since there is no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes. The applicant's complaint is, more precisely, that the consent provisions of the 1990 Act prevent her from using the embryos she and J created together, and thus, given her particular circumstances, from ever having a child to whom she is genetically related. The Grand Chamber considers that this more limited issue, concerning the right to respect for the decision to become a parent in the genetic sense, also falls within the scope of Article 8.

The dilemma central to the present case is that it involves a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person's interest is entirely irreconcilable with the other's, since if the applicant is permitted to use the embryos, J will be forced to become a father, whereas if J's refusal or withdrawal of consent is upheld, the applicant will be denied the opportunity of becoming a genetic parent. In the difficult circumstances of this case, whatever solution the national authorities might adopt would result in the interests of one or the other parties to the IVF treatment being wholly frustrated (cf. Odièvre, cited above, § 44).

In addition, the Grand Chamber, like the Chamber, accepts the Government's submission (see paragraph 68 above) that the case does not involve simply a conflict between individuals; the legislation in question also served a number of wider, public interests, in upholding the principle of the primacy of consent and promoting legal clarity and certainty, for example (compare, again, Odièvre, § 45). The extent to which it was permissible under Article 8 for the State to give weight to these considerations is examined below.

Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (Odièvre, cited above, § 40).

In the domestic proceedings, the parties and the judges treated the issue as one involving an interference by the State with the applicant's right to respect for her private life, because the relevant provisions of the 1990 Act prevented the clinic from treating her once J had informed it that he did not consent. The Grand Chamber, however, like the Chamber, considers that it is more appropriate to analyse the case as one concerning positive obligations, the principal issue, as in the Odièvre case cited above, being whether the legislative provisions as applied in the present case struck a fair balance between the competing public and private interests involved. In this regard, the Grand Chamber accepts the findings of the domestic courts that J had never consented to the applicant using the jointly created embryos alone — his consent being limited to undergoing ‘treatment together’ with the applicant (see paragraph 24 above). The Court does not find it of importance to the determination of the Convention issue, whether in these circumstances J is to be regarded as having ‘refused’ rather than ‘withdrawn’ his consent to the implantation of the embryos, as the Government argue (paragraph 67 above).

A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted (see, for example, X. and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, §§ 24 and 27; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45; Christine Goodwin v. the United Kingdom[GC], no. 28957/95, § 90, ECHR 2002-VI; cf. Pretty, cited above, § 71). Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (X., Y. and Z. v. the United Kingdom, judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, § 44; Frette v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin, cited above, § 85; see also, mutatis mutandis, Vo, cited above, § 82). There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights (see Odièvre, §§ 44–49 and Frette§ 42).

The issues raised by the present case are undoubtedly of a morally and ethically delicate nature, and in this connection the Court recalls the words of Lord Bingham in Quintavalle (see paragraph 34 above).

In addition, while the Court is mindful of the applicant's submission to treat the comparative law data with caution, it is at least clear, and the applicant does not contend otherwise, that there is no uniform European approach in this field. Certain States have enacted primary or secondary legislation to control the use of IVF treatment, whereas in others this is a matter left to medical practice and guidelines. While the United Kingdom is not alone in permitting storage of embryos and in providing both gamete providers with the power freely and effectively to withdraw consent up until the moment of implantation, different rules and practices are applied elsewhere in Europe. It cannot be said that there is any consensus as to the stage in IVF treatment when the gamete providers' consent becomes irrevocable (see paragraphs 39–42 above).

While the applicant contends that her greater physical and emotional expenditure during the IVF process, and her subsequent infertility, entail that her Article 8 rights should take precedence over J's, it does not appear to the Court that there is any clear consensus on this point either. The Court of Appeal commented on the difficulty of comparing the effect on J of being forced to become the father of the applicant's child and that on the applicant of being denied the chance to have genetically-related offspring (see paragraphs 25–26 above), and this difficulty is also reflected in the range of views expressed by the two panels of the Israeli Supreme Court in Nachmani and in the United States case-law (see paragraphs 43–49 above).

In conclusion, therefore, 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 (see X., Y. and Z, cited above, § 44).

The Grand Chamber, like the Chamber, considers that the above margin must in principle extend both to the State's decision whether or not to enact legislation governing the use of IVF treatment and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests.

It remains for the Court to determine whether, in the special circumstances of the case, the application of a law which permitted J effectively to withdraw or withhold his consent to the implantation in the applicant's uterus of the embryos created jointly by them struck a fair balance between the competing interests.

The fact that it is now technically possible to keep human embryos in frozen storage gives rise to an essential difference between IVF and fertilisation through sexual intercourse, namely the possibility of allowing a lapse of time, which may be substantial, to intervene between creation of the embryo and its implantation in the uterus. The Court considers that it is legitimate — and indeed desirable — for a State to set up a legal scheme which takes this possibility of delay into account. In the United Kingdom, the solution adopted in the 1990 Act was to permit storage of embryos for a maximum of five years. In 1996 this period was extended by secondary legislation to ten or more years where one of the gamete providers or the prospective mother is, or is likely to become, prematurely infertile, although storage can never continue after the woman being treated reaches the age of 55 (see paragraph 36 above).

These provisions are complemented by a requirement on the clinic providing the treatment to obtain a prior written consent from each gamete provider, specifying, inter alia, the type of treatment for which the embryo is to be used (Schedule 3, paragraph 2(1) to the 1990 Act), the maximum period of storage, and what is to be done with it in the event of the gamete provider's death or incapacity (Schedule 3, paragraph 2(2)). Moreover, paragraph 4 of Schedule 3 provides that ‘the terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo …’ up until the point that the embryo has been ‘used’ (that is, implanted in the uterus; see paragraph 37 above). Other States, with different religious, social and political cultures, have adopted different solutions to the technical possibility of delay between fertilisation and implantation (see paragraphs 39–42 above). For the reasons set out above (paragraphs 77–82), the decision as to the principles and policies to be applied in this sensitive field must primarily be for each State to determine.

In this connection the Grand Chamber agrees with the Chamber that it is relevant that the 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate (see, mutatis mutandis, Hatton and others v. the United Kingdom[GC], no. 36022/97, § 128, ECHR 2003-VIII).

The potential problems arising from scientific progress in storing human embryos were addressed as early as the Warnock Committee's Report of 1984, which recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority. In the event that a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the ‘storage authority’. The subsequent Green Paper specifically asked interested members of the public what should happen where there was no agreement between a couple as to the use or disposal of an embryo, and the 1987 White Paper noted that those respondents who agreed that storage should be permitted were broadly in favour of the Committee's recommendations, but that some rejected the idea that the ‘storage authority’ should be empowered to decide the embryo's fate in the event of conflict between the donors. The Government therefore proposed ‘that the law should be based on the clear principle that the donor's wishes are paramount during the period in which embryos or gametes may be stored; and that after the expiry of this period, they may only be used by the licence holder for other purposes if the donor's consent has been given to this’. The White Paper also set out the detail of the proposals on consent, in a form which, after further consultation, was adopted by the legislature in Schedule 3 to the 1990 Act (see paragraphs 29–33 above).

That Schedule places a legal obligation on any clinic carrying out IVF treatment to explain the consent provisions to a person embarking on such treatment and to obtain his or her consent in writing (see paragraph 37 above). It is undisputed that this occurred in the present case, and that the applicant and J both signed the consent forms required by the law. While the pressing nature of the applicant's medical condition required her to make a decision quickly and under extreme stress, she knew, when consenting to have all her eggs fertilised with J's sperm, that these would be the last eggs available to her, that it would be some time before her cancer treatment was completed and any embryos could be implanted, and that, as a matter of law, J would be free to withdraw consent to implantation at any moment.

While the applicant criticised the national rules on consent for the fact that they could not be disapplied in any circumstances, the Court does not find that the absolute nature of the law is, in itself, necessarily inconsistent with Article 8 (see also the Pretty and Odièvre cases cited in paragraph 60 above). Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the legislature's decision to enact provisions permitting of no exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent. In addition to the principle at stake, the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis, what the Court of Appeal described as ‘entirely incommensurable’ interests (see paragraphs 25–26 above). In the Court's view, these general interests pursued by the legislation are legitimate and consistent with Article 8.

As regards the balance struck between the conflicting Article 8 rights of the parties to the IVF treatment, the Grand Chamber, in common with every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else. However, given the above considerations, including the lack of any European consensus on this point (see paragraph 79 above), it does not consider that the applicant's right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than J's right to respect for his decision not to have a genetically-related child with her.

The Court accepts that it would have been possible for Parliament to regulate the situation differently. However, as the Chamber observed, the central question under Article 8 is not whether different rules might have been adopted by the legislature, 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.

The Grand Chamber considers that, given the lack of European consensus on this point, the fact that the domestic rules were clear and brought to the attention of the applicant and that they struck a fair balance between the competing interests, there has been no violation of Article 8 of the Convention.