CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 10 avril 2007

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s14FEBB7F { width:227.99pt; display:inline-block } .s6C457F50 { width:11.66pt; display:inline-block } .s89574CAE { width:234.66pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       GRAND CHAMBER           CASE OF EVANS v. THE UNITED KINGDOM   (Application no. 6339/05)                     JUDGMENT       STRASBOURG   10 April 2007       The case of Evans v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Christos Rozakis, President ,   Jean-Paul Costa,   Nicolas Bratza,   Boštjan M. Zupančič,   Peer Lorenzen,   Rıza Türmen,   Volodymyr Butkevych,   Nina Vajić,   Margarita Tsatsa-Nikolovska,   András Baka,   Anatoly Kovler,   Vladimiro Zagrebelsky,   Antonella Mularoni,   Dean Spielmann,   Renate Jaeger,   Davíd Thór Björgvinsson,   Ineta Ziemele, judges , and Erik Fribergh, Registrar , Having deliberated in private on 22 November 2006 and 12 March 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 6339/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms   Natallie Evans (“the applicant”), on 11 February 2005. 2.     The applicant, who had been granted legal aid, was represented by Mr   M. Lyons, a lawyer practising in London. The British Government (“the Government”) were represented by their Agents, Ms E. Willmott and Ms   K.   McCleery, Foreign and Commonwealth Office. 3.     The applicant complained under Articles 2, 8 and 14 of the Convention that domestic law permitted her former partner effectively to withdraw his consent to the storage and use by her of embryos created jointly by them. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     On 22 February 2005 the President of the Chamber decided to indicate to the Government, under Rule 39, that, without prejudice to any decision of the Court as to the merits of the case, it was desirable in the interests of the proper conduct of the proceedings that the Government take appropriate measures to ensure that the embryos were preserved until the Court had completed its examination of the case. On the same day, the President decided that the application should be given priority treatment, under Rule 41; that the admissibility and merits should be examined jointly, in accordance with Article 29 § 3 of the Convention and Rule 54A; and, under Rule 54 § 2 (b), that the Government should be invited to submit written observations on the admissibility and merits of the case. On 7 June 2005 the Chamber confirmed the above rulings (Rule 54 § 3). 6.     On 7 March 2006, after a hearing dealing with both the question of admissibility and the merits (Rule 54 § 3), the Chamber, composed of Josep Casadevall, President, Nicolas Bratza, Matti Pellonpää, Rait Maruste, Kristaq Traja, Ljiljana Mijovic and Ján Šikuta, judges, and Michael O’Boyle, Section Registrar, declared the application admissible and held, unanimously, that there had been no violation of Articles 2 or 14 of the Convention and by five votes to two that there had been no violation of Article 8. A joint dissenting opinion by Judges Traja and Mijovic was appended to the judgment. 7.     On 5 June 2006 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber granted that request on 3 July 2006. On the same date, the President of the Court decided to prolong the indication to the Government made on 22 February 2005 under Rule 39 (see paragraph 5 above). 8.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.     The applicant and the Government each filed submissions on the merits. 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 22 November 2006 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government M s   H. Mulvein,   Agent , M r   P. Sales, QC   M r   J. Coppel,   Counsel , M s   K. Arnold,   M s   G. Skinner,   Advisers ; (b)     for the applicant Mr   R. Tolson, QC,   Ms   S. Freeborn,   Counsel , Mr   M. Lyons,   Solicitor , Ms   A. Murphy O’Reilly,   Adviser , Ms   N. Evans,   Applicant .   The Court heard addresses by Mr Sales and Mr Tolson, as well as their answers to questions put by Judges Spielmann, Türmen, Myjer, Davíd Thór Björgvinsson, Costa and Zagrebelsky. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 11.     The applicant was born in October 1971 and lives in Wiltshire. 12.     The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 20 below), are as follows. A.     The IVF treatment 13.     On 12 July 2000 the applicant and her partner, J. (born in November 1976), commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been referred for treatment at the clinic five years earlier, when she was married, but had not pursued it because of the breakdown of her marriage. 14.     On 10 October 2001 the applicant and J. were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly. 15.     The consultation of 10 October 2001 lasted approximately an hour in total. A nurse explained that the applicant and J. would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraph 37 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J. reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. 16.     Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 37 below). Immediately beneath the title to the form appeared the following words: “NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.” J. ticked the boxes which recorded his consent to use his sperm to fertilise the applicant’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of ten years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J., she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.” 17.     On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus. B.     The High Court proceedings 18.     In May 2002 the relationship broke down. The future of the embryos was discussed between the parties. On 4 July 2002 J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed. 19.     The clinic notified the applicant of J.’s withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3 to the 1990 Act (see paragraph 37 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J. to restore his consent to the use and storage of the embryos and a declaration, inter alia , that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14 of the Convention. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings. 20.     The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65-page judgment ( Evans v. Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims. 21.     He concluded that under the terms of the 1990 Act, and as a matter of public policy, it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance, and that, as a matter of fact, J. had only ever consented to his treatment “together” with the applicant, and not to her continuing treatment on her own in the event that their relationship ended. Wall J thus rejected the applicant’s submission that J. was estopped from withdrawing his consent, finding that both the applicant and J. had embarked on the treatment on the basis that their relationship would continue. On 10 October 2001 J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children; giving a truthful expression of his feelings at that moment, but not committing himself for all time. Wall J observed that in the field of personal relationships, endearments and reassurances of this kind were commonplace, but they did not – and could not – have any permanent, legal effect. In undergoing IVF with J., the applicant had taken the only realistic course of action open to her. Wall J continued: “However, even if I am wrong about that, and even if an estoppel is capable of existing in the face of the Act, I do not, for the reasons I have given, think it would be unconscionable to allow [J.] to withdraw his consent. It is a right which the Statute gives him within the clear scheme operated by Parliament. It was the basis upon which he gave his consent on 10 October 2001. It is perfectly reasonable for him, in the changed circumstances which appertain, not to want to father a child by Ms   Evans.” 22.     As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He accepted that the relevant provisions of the 1990 Act interfered with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child. He considered it entirely appropriate that the Act required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman. 23.     Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 37 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man. “If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.” C.     The Court of Appeal’s judgment 24.     The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 ( Evans v. Amicus Healthcare Ltd [2004] EWCA Civ 727). The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. Like Wall J, the Court of Appeal found that J. had only ever consented to undergoing “treatment together” with the applicant, and had never consented to the applicant using the jointly created embryos alone. Once the relationship had broken down, and J. had indicated that he did not wish the embryos to be preserved or used by the applicant, they were no longer being treated “together”. The court rejected the applicant’s argument that J. had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J., and the other witnesses (see paragraph 20 above). The Court of Appeal was also informed by J.’s counsel that J.’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection. 25.     While there was an interference with the private lives of the parties, Lords Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons. “The less drastic means contended for here is a rule of law making the withdrawal of [J.’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J.’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the [Human Fertilisation and Embryology Authority] or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ... ... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.” 26.     Lady Justice Arden stated, by way of introduction: “The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.” She continued: “Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J.’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J.]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J.’s] right is justified on the ground that interference is necessary to protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified. ... The interference with [the applicant’s] private life is also justified under Article 8 §   2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J.], especially as in the present case it will probably involve financial responsibility in law for the child as well.” 27.     On the issue of discrimination, Lords Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests. 28.     On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Domestic law: the 1990 Act 1.     The Warnock Report 29.     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”. 30.     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 (see paragraph   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 (paragraph 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 (paragraph 10.13). Consistent with its view that there should be no right of ownership in a human embryo (paragraph 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. 2.     Consultation and the adoption of legislation 31.     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 paragraph 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. 32.     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 (paragraphs 50-51), but continued: “Broadly, those who believe storage should be permitted were content with the Warnock recommendations. There were some, however, who considered that the ‘storage authority’ should not have the right of use or disposal unless specifically granted this by the donors. The Government shares this latter view and has concluded 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 indicated the Government’s decision that the maximum storage period for embryos should be five years (paragraph 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: “55.     The complexities connected with storage underline the importance of ensuring that, when couples embark on IVF treatment, or when gametes are being donated, the individuals involved have given their consent to the uses to which their gametes or embryos will be put. 56.     The Bill will provide that gametes or embryos may only be stored with the signed consent of the donors; and may be used only by the licence holder responsible for storage for the purposes specified in that consent (e.g. for therapeutic treatment, [or for research]). Those giving consent should be provided with information about the techniques for which their gametes/embryos might be used and about the legal implications of their decision. As a matter of good practice, counselling should also be available to them. 57.     Donors would have the right to vary or withdraw their consent before the gametes/embryos were used, but the onus would be on them to notify any change to the licence holder. A licence holder receiving notice of such a change will have a duty to inform any other licence holder to whom he has supplied the donor’s gametes. (This situation might arise, for example, if a sperm bank supplied sperm to one or more treatment centres.) In the absence of any notification to the contrary, or notification of death, the licence holder must assume that the original consent still holds, and must act accordingly during the storage period. When this ends, he may only use or dispose of the embryos or gametes in accordance with the specified wishes of the donors. If these are not clear, the embryo or gametes should be removed from storage and left to perish. 58.     As far as embryos are concerned, these may not be implanted into another woman, nor used for research, nor destroyed (prior to the expiry of the storage time limit) in the absence of the consent of both donors. If there is disagreement between the donors the licence holder will need to keep the embryo in storage until the end of the storage period, after which time, if there is still no agreement, the embryo should be left to perish.” 33.     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. 3.     The 1990 Act 34.     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. “... There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments to support it. Nor can one doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced cutting edge of science. ... The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions of which some have been noted above, to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control ... It is ... plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all.” 35.     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). 36.     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 ten 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. 37.     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 of 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 as follows: “ Consents to use of gametes or embryos Consent 1.     A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn. 2.     (1) A consent to the use of any embryo must specify one or more of the following purposes– (a)     use in providing treatment services to the person giving consent, or that person and another specified person together, (b)     use in providing treatment services to persons not including the person giving consent, or (c)     use for the purposes of any project of research, and may specify conditions subject to which the embryo may be so used. (2)     A consent to the storage of any gametes or any embryo must– (a)     specify the maximum period of storage (if less than the statutory storage period), and (b)     state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it, and may specify conditions subject to which the gametes or embryo may remain in storage. (3)     A consent under this Schedule must provide for such other matters as the Authority may specify in directions. (4)     A consent under this Schedule may apply– (a)     to the use or storage of a particular embryo, or (b)     in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes, and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos. Procedure for giving consent 3.     (1) Before a person gives consent under this Schedule– (a)     he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b)     he must be provided with such relevant information as is proper. (2)     Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below. Variation and withdrawal of consent 4.     (1) 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 to which the consent is relevant. (2)     The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used– (a)     in providing treatment services, or (b)     for the purposes of any project of research. Use of gametes for treatment of others 5.     (1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent. (2)     A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used. (3)     This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services. In vitro fertilisation and subsequent use of embryo 6.     (1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above. (2)     An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo. (3)     An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents. (4)     Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above. ... Storage of gametes and embryos 8.     (1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent. (2)     An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents. (3)     An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.” 38.     The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley (see paragraph 25 above) as follows. “(i)     Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) They must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) Consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) An embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) An embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) Consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) Consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.” B.     The position within the Council of Europe and in certain other countries 1.     The member States of the Council of Europe 39.     On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Comparative 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. 40.     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. 41.     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. 42.     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. 2.     The United States of America 43.     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. 44.     In Davis v. Davis (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992: “... disputes involving the disposition of pre-embryos produced by in vitro fertilisation should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail. But the rule does not contemplate the creation of an automatic veto ...” 45.     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. 46.     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 amen