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Evans v UK: Three Grounds for Ruling Differently

Eva Brems

1. The Grand Chamber Judgment

Evans v UK has been described by a Grand Chamber of the ECtHR as a ‘dilemma’ and as a case of

conflict between human rights in which each person’s interest is entirely irreconcilable with the

other’s.1 The Court had to decide whether the destruction of frozen embryos against the wish of the

woman who contributed her ovum violated this woman’s article 8 rights.

Before the removal of the applicant’s ovaries for medical reasons, eleven of her eggs were harvested

for in vitro fertilisation with her partner’s sperm. This resulted in six embryos, which were frozen. The

applicant was told she should wait at least two years before attempting to implant these in her uterus.

The applicant and her partner were informed about the provisions of the Human Fertilisation and

Embryology Act 1990, according to which 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. When the applicant asked

whether it would be possible to freeze her unfertilised eggs, she was informed that this procedure,

which had a much lower chance of success, was not performed at the clinic. Around six months after

the IVF, the couple split up, and the applicant’s ex-partner informed the clinic that he wanted the

embryos destroyed. The applicant’s resorting to the ECtHR is her final attempt to stop this. Yet the

Court held that the UK Legislator’s balancing of the rights in conflict did not exceed its margin of

appreciation.

In essence, Evans is about reproductive rights and freedoms. The female applicant invokes a positive

reproductive right – the right to have the embryos to which she contributed her very last egg cells to

remain available to her so as to keep her reproductive capacity intact. Against this, the state defendant

invokes the male ex-partner’s negative reproductive right – the right not to become a genetic parent

against his will, concretely the right to avoid that particular embryos to which he contributed his

gametes would be implanted and develop into human beings. The Court does not use the term

‘reproductive rights’ however, referring instead to ‘the right to respect for both the decisions to

become and not to become a parent in the genetic sense’.2

The key features of the Grand Chamber’s reasoning are the granting of a wide margin of appreciation

and the acceptance of a ‘bright line rule’ as a solution. The former is motivated by the absence of a

European consensus in this field, and results in the explicit rejection of ‘less restrictive means’

reasoning:

‘The Court accepts that it would have been possible for Parliament to regulate the situation

differently. However, [...]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.’3

1 ECHR Grand Chamber, Evans v UK, 10 April 2007, para. 73. 2 Id., para. 72. 3 Id., para. 91.

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On the latter, the Court rules that the interests of legal certainty and of avoiding arbitrariness and

inconsistency in weighing what were considered “entirely incommensurable interests”, could justify

an absolute rule without exceptions.4

2. Preliminary Comments

Before presenting an alternative approach by which the Court might have addressed the case, I want

to make two preliminary points. One is about the prevention of the conflict between Convention rights.

The other is about the margin of appreciation of the States Parties in cases of conflicting Convention

rights.

2.1. Could this dispute have been prevented?

Most people will agree that it is not desirable to have conflicts of this type solved by courts. So it is

worth considering what, if anything, could be done to prevent such situations.

In the first place, it seems that a structural solution to avoiding these conflicts can be found through

the development of medical science and the choices made in the delivery of reproductive health

services. Since the facts in Evans (the IVF took place in 2001), techniques for freezing egg cells have

improved and become quite common in Europe.5 This allows women in the situation of Natallie Evans

today the option to have their unfertilized eggs frozen, thus postponing IVF until the time they are

ready for implantation. This almost eliminates the risk of the sperm donor withdrawing his consent.

But that option was not available to Natallie Evans. Going back in time, could the judicial dispute have

been avoided? It seems that the UK legislator, despite thorough discussions of the matter, had not

explicitly foreseen the situation in which a couple that jointly created embryos for storage would split

up between the IVF and the moment they chose to implant the embryos. Hence the documents to be

signed by the partners included choices to be made with respect to what would happen with the

embryos in case of the death or mental incapacity of one of the partners, but not in case of separation.

Having partners make such choice in advance at the time of the IVF may prevent some disputes, but it

is certainly not a watertight system, as appears from the case of A.Z. v. B.Z. (Supreme Court

Massachusetts 2000), cited in Evans.6 The couple in this case had made a written agreement, according

to which, in the event of separation, the embryos were to be given to the wife. Yet after separation,

the husband opposed her continuation of the treatment, and 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”.7

2.2. Wide margin of appreciation and bright line rule

4 Id., para. 89. 5 http://www.hfea.gov.uk/46.html#1 6 Id., para. 46. 7 Ibid.

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I submit that it is overall defensible for the ECtHR to grant a wide margin of appreciation in cases of

conflicting Convention rights. When fundamental rights clash, there are in many cases strong

arguments on both sides, and several solutions may be acceptable within the European human rights

framework. Moreover, the opposite approach of strict scrutiny might not work in conflicting rights

cases for lack of a clear ‘least restrictive alternative’.

Yet, in my opinion, in any concrete case a wide margin of appreciation can only be granted if there is

evidence that a serious balancing effort of the conflicting rights or interests has been undertaken at

the domestic level. In the Evans case, balancing had taken place only on an abstract level, but not at

the level of the concrete situation of the applicants. This is significant as their specific situation

(splitting up between IVF and implantation) appears not to have been considered in the balancing

exercise that was conducted at the domestic level. A bright line rule that does not allow for any

exceptions will inevitably result in problematic situations when confronted with atypical cases, in

which the balancing between the interests at stake in the concrete case cannot be subsumed under

the legislator’s general balancing. A bright line rule does not give a national judge room to do her own

balancing either – it reduces the judge’s role to automatically applying a rule. Hence I agree with the

dissenters in the Chamber judgment who found that ‘exceptions (to bright line rules) should be allowed

where, in the circumstances of the case, the rigid application of such a rule could lead to irreparable

harm or to the destruction of the essence of one party’s rights’.8 In my opinion, the Court should

exercise heightened scrutiny when it is confronted with the automatic application of a bright line rule

to an atypical case.

3. Method

The alternative approach to Evans that is proposed in this paper, will follow a method that stands on

two legs. The first leg is the model for addressing conflicts between human rights that I have proposed

in previous publications.9 The second leg is an integrated perspective of international human rights

law, as is being developed in an ongoing research project and a recent publication.10

3.1. A Three-Step Model to Address Conflicting Human Rights

In my opinion, an initial requirement for an adequate approach to conflicting rights situations, is to

make the conflict explicit and address it as such. This is not self-evident from the perspective of courts.

Although both human rights in a ‘conflicting rights’ situation are equally fundamental and a priori carry

equal weight, they do not come before the judge in an equal manner. The right that is invoked by the

applicant receives most attention, because the question to be answered by the judge is whether or

8 ECtHR, Evans v UK, Chamber judgment of 7 March 2006, Joint dissenting opinion of judges Traja and Micović. 9 Eva Brems (ed.), Conflicts Between Fundamental Rights, Intersentia, 2008, 690 p; Eva Brems, “Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms”, Human Rights Quarterly, 2005, 294-326; Eva Brems, “Droit humains conflictuels: les droits de la femme sont-ils préjudiciables aux droits multiculturels et inversement?”, in Gily Coene et Chia Longman (dir.), Féminisme et multiculturalisme; Les paradoxes du débat, Peter Lang, 2010, 133-143. 10 Eva Brems, ‘Should Pluriform Human Rights Become One ? Exploring the Benefits of Human Rights Integration’, European Journal of Human Rights, 2014(4), 447-470. See the Inter-University Attraction Pole project ‘The Global Challenge of Human Rights Integration: Toward a Users’ Perspective’, http://hrintegration.be/.

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not this right was violated. That granting the applicant’s claim would violate another human right is an

element that is advanced in the arguments of the defendant. Through these arguments, it may find its

way to the judge’s reasoning in the judgment, but it is not among the legal questions to be directly

addressed by the judge. In Evans however, the Court explicitly recognizes from the outset of its Article

8 reasoning that the case ‘involves a conflict between the Article 8 rights of two private individuals’.11

I consider this good practice.

Step 1: Eliminate fake conflicts

In some cases, the conflict between fundamental rights is not a necessary feature of the issue

concerned, but rather results from a particular approach to that issue. When a claim is made for the

restriction of one human right in the name of the protection of another human right, it has to be

examined whether it is possible to avoid the conflict between those two rights. Can a solution be found

that leaves both rights intact? If this is the case, that solution will have to be preferred in most cases.

An example in the context of criminal procedure is a legal provision attempting to realise the right to

a trial within a reasonable time by imposing strict procedural time limits only on the accused, and not

on the prosecutor. This is a restriction of the accused person’s right of equality of arms. Both the

reasonable time requirement and the requirement of equality of arms are sub-rights of the right to a

fair trial. The European Court of Human Rights held that the reasonable time objective can – and

therefore should- be realised without impinging upon the equality of arms.12

Step 2: Preference for compromise

Most of the time however, it will not be possible to fully protect both rights, which means that there

is a ‘real’ conflict between human rights. In those cases, it is important to attempt to avoid having to

sacrifice one right for the sake of the other. By definition, each of the interests involved is considered

particularly important, such that under normal circumstances it is given priority over other claims.

Hence a solution that completely forsakes the protection of one of those rights is undesirable. When

both rights are put in the balance, the challenge is to find equilibrium, rather than making the balance

tilt to one side or the other. Preference has to be given to a solution that does not subordinate one

right to the other, but rather finds a compromise with concessions from both sides for the purpose of

guaranteeing maximum protection of both rights. For example, when the glamour press publishes

photographs of movie stars or princes, this opposes the privacy rights of these people to the freedom

of the press. In this conflict, it is generally accepted that the solution lies not in either totally protecting

privacy (and thus prohibiting the publication of photographs without explicit permission) or totally

protecting press freedom (and thus allowing a paparazzi hunt on the stars), but rather in a compromise,

in which for example photographs taken at public occasions can freely be published, but photographs

in the private sphere require permission.13

Step 3: Criteria for prioritization

It seems inevitable that a substantial number of conflicts will not be susceptible to either elimination

or compromise, and may only be solved by according priority to one right over the other.

11 Evans GC, para. 73. 12 ECtHR, Wynen v. Belgium, 5 November 2002, Reports of Judgments and Decisions, 2002-VIII. 13 See for the European Court’s approach to this issue, the Von Hannover cases, involving the royal family of Luxemburg: ECtHR, Von Hannover v Germany, 24 June 2004 and especially ECtHR (Grand Chamber), Von Hannover v Germany (n° 2), 7 February 2012.

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In rare cases, international law provides the order of priority. E.g. in the conflict between freedom of

expression and the prohibition of racial discrimination in the context of racist hate speech, article 4

CERD gives priority to the latter. Yet in most cases, no such ranking by the treaty maker is available,

and the principle of indivisibility applies. Yet in order to solve the issue, rights have to be ranked in the

concrete case.

In this respect it is useful to inventorize all relevant criteria that may guide this exercise. Some

examples:

- a distinction between the core and the periphery within each right. In a conflict between rights A and

B, it is possible that realising A infringes upon the core of B, whereas realising B would only infringe

upon a peripheral zone of A, which would argue in favour of that solution.

- A related criterion is the severity of the interference caused by the exercise of one right in the exercise

of the other and vice versa. If the exercise of the right is rendered utterly impossible, this will carry

more weight than if it is ‘only’ made more difficult

- the indirect involvement of other rights, due to the involvement of third parties or to the ‘leverage’

effect of a particular right (e.g. the right to a fair trial acts as a lever for the enforcement of all other

rights); if an infringement on right A indirectly results in infringements upon rights C and D, there is

increased reason to avoid this infringement.

- similarly, the involvement of other weighty general interests in addition to the individual rights may

play a role: there are fundamental individual rights in both scales of the balance; if this is joined in one

scale but not the other by an important general interest, that may tilt the balance.

- the distinction between positive and negative obligations. Can it be argued that direct interferences

by state authorities are more serious than shortcomings of the authorities in their obligation to fulfil

rights?

- Similarly, a distinction may be made between direct and indirect discrimination: van den Brink14 has

argued that in a conflict between a prohibition of direct discrimination and a prohibition of indirect

discrimination, the prohibition of direct discrimination should carry more weight.

3.2. An integrated approach to human rights

An integrated approach to human rights is one that takes into account all relevant applicable sources

of international human rights law. The individuals whose rights conflict in this case enjoy human rights

from multiple sources, not only the ECHR. Likewise the state party, the United Kingdom has committed

to multiple treaty obligations with respect to human rights.

It is submitted that there are two strong reasons of principle that appear to plead in favour of an

integrated approach at the level of human rights implementation bodies. In addition, there is legal

support in public international law for at least part of the project of human rights integration.

In the first place, an integrated approach is needed for full human rights justice. When people turn to

a human rights implementation body, this is often the last step in a long struggle for justice. Yet in

many cases, their best hope is for the enforcement of only part of their human rights, as the other

human rights they enjoy cannot be enforced before the particular forum to which they have turned

and therefore are not considered by the body that will decide on their case. It is submitted that it

14 Marjolein van den Brink, ““If there is anyone, who has an objection to this marriage…” Religious objections to conducting marriages of same-sex couples in the Netherlands, paper presented at Seminar Religion in the public sphere, Utrecht University, 8 May 2008.

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should be possible for rights holders to obtain full human rights justice, and that this requires an

integrated approach to human rights.

In the second place, an integrated approach can bring human rights law closer to the ethical and

political project of human rights. In particular, integrated human rights may further both the

universality and the indivisibility of human rights, two central principles of the global human rights

project. The principle of universality of human rights has been much debated. Yet its basic meaning -

all human beings have all human rights- is not contested and is crucial to the idea of ‘human’ rights.

The principle of indivisibility of human rights and the related concept of interdependence of human

rights may be less fundamental to the concept of human rights as such, yet they are long-standing

choices that have been made by the world community.15 Moreover, indivisibility of human rights law

reflects the reality of human rights violations on the ground, which are often compounded.

Indivisibility and interdependence mean that human rights are a package deal and that there is no

hierarchy within human rights. Together, the overarching principles of universality and indivisibility

require that all human rights should carry the same weight, and that they should be read together,

strengthening each other.

The reality of human rights implementation is however often far removed from these principles, as

cases involving multiple human rights are routinely examined through the lens of one human right

only, and as the invoking of multiple norms in a single situation remains the exception rather than the

rule. Similarly, human rights analyses routinely overlook some of the rights holders affected by an

issue. If human rights are to be universal and indivisible, they may therefore have to be integrated.

Finally, a legal argument should be mentioned. Article 31 (3) (c) of the Vienna Convention on the Law

of Treaties states as a general rule of treaty interpretation that ‘there shall be taken into account,

together with the context:… (c) any relevant rules of international law applicable in the relations

between the parties.’ Koskenniemi has named this ‘the principle of systemic integration’, and

described it as a process ‘whereby international obligations are interpreted by reference to their

normative environment’.16 In a report for the International Law Commission (ILC), he has formulated

the rule of systemic integration as follows: ‘This means that although a tribunal may only have

jurisdiction in regard to a particular instrument, it must always interpret and apply that instrument in

its relationship to its normative environment - that is to say “other” international law.’17 This ‘other

international law’ includes conventions concluded among the same parties, or even – according to the

ILC’s preferred interpretation- those concluded by the party/parties in the dispute (and not necessarily

all other parties to the main treaty).18 If the interpretation of the International Law Commission is

followed, human rights integration is thus mandatory as a matter of public international law. This

would require at least the integrated reading of all human rights treaties concluded among the same

parties (for instance all treaties ratified by all Council of Europe member states). But more likely it

would go a lot further and require the integrated reading of all human rights treaties adhered to by

the relevant state (or by both states parties in case of an inter-state dispute).

15 Cf. the Vienna Declaration and Programme of Action, outcome of the United Nations World Conference on Human Rights (1993), para. 5: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’ 16 Martti Koskenniemi, Fragmentation of international law: difficulties arising from diversification and expansion of international law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682 (2006), 208. 17 Ibid., 212. 18 Ibid., 238.

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The mandate of the ECtHR is limited to the European Convention on Human Rights and its additional

protocols. Yet in its case-law, multiple references can be found to other sources of human rights law.

Such references are recurrent and fairly extensive in the part of the judgment setting out relevant law.

Yet more interestingly, they also occur in the operative part of judgments, steering the Court’s

interpretation of the ECHR.19 The Court has for example referred to the Social Charter of the Council

of Europe and to several Conventions of the International Labour Organisation to read into article 11

ECHR a right for trade unions to enter into collective agreements.20 It has provided a double

justification for this external input in its interpretation of the European Convention. First, the Court

states that it ‘has never considered the provisions of the Convention as the sole framework of

reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must

also take into account any relevant rules and principles of international law applicable in relations

between the Contracting Parties’.21 Second, the Court ‘observes that it has always referred to the

“living” nature of the Convention, which must be interpreted in the light of present-day conditions,

and that it has taken account of evolving norms of national and international law in its interpretation

of Convention provisions’.22 It is to be noted that only the first of these arguments limits the range of

relevant treaties to the ones adhered to by the State defendant in the case at hand. The second

argument appears to be the dominant one in the Grand Chamber’s reasoning, when it states that ‘the

common international … law standards of European States reflect a reality that the Court cannot

disregard when it is called upon to clarify the scope of a Convention provision that more conventional

means of interpretation have not enabled it to establish with a sufficient degree of certainty’.23 The

Court specifies that ‘in searching for common ground among the norms of international law it has

never distinguished between sources of law according to whether or not they have been signed or

ratified by the respondent State’.24 As a result, also non-binding instruments can have this

interpretative role.25 Other important examples of integrative interpretation by the European Court of

Human Rights include bringing human trafficking as defined by the United Nations Palermo Protocol26

and the Council of Europe Anti-Trafficking Convention27 under article 4 ECHR28 and borrowing the

definition of torture from the United Nations Convention Against Torture.29 Also, in determining

whether conditions of detention qualify as ‘inhuman’ or ‘degrading’ and therefore violate article 3

ECHR, the Court makes frequent use of the work of the Council of Europe Convention for the

Prevention of Torture and of the work of the Committee under that Convention. And a research report

19 See European Court of Human Rights Research Division, The use of Council of Europe Treaties in the Case-law of the European Court of Human Rights, June 2011 and (for a broader perspective including non-human rights related treaties) European Court of Human Rights Press Unit, Use of international conventions by the European Court of Human Rights, November 2012, available at the website of the European Court of Human Rights. 20 Eur. Ct. H. R. (GC), Demir and Beykara v. Turkey, 12 November 2008 (Appl. No. 34503/97). 21 Ibid., § 67. 22 Ibid., § 68. 23 Ibid., § 76. 24 Ibid., § 78. 25 The Court in Demir and Beykara gives the example of several references to the European Union’s Charter of Fundamental Rights, even though this instrument was not binding at the time: Ibid., § 80. 26 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000). 27 Council of Europe Convention on Action against Trafficking in Human Beings (2005). 28 Eur. Ct. H. R., Rantsev. v. Cyprus and Russia, 7 January 2010 (Appl. No. 25965/04) § 282. 29 Eur. Ct. H. R. (GC), Selmouni v. France, 28 July 1999, (Appl. No. 25803/94) § 97; Eur. Ct. H. R. (GC), Gäfgen v. Germany, 1 June 2010 (Appl. No. 22978/05), § 90.

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of the Court’s Research Division documented 25 judgments in which the European Court made

reference to the case-law of the Inter-American Court of Human Rights.30 However, the ECtHR’s

practice in this field is far from consistent.

4. Application of the Method to the Case

In a first step, we will examine which human rights sources – other than the ECHR- may be applicable

to the case at hand. After exploring the concrete relevance of several prima facie candidates, we will

integrate our findings in the application of the three-step-test to the Evans case.

4.1. Integrating non-ECHR Human Rights Sources

The ‘relevant international texts’ section in the judgment makes reference to the Council of Europe

Convention on Human Rights and Biomedicine and the Universal Declaration on Bioethics and Human

Rights. In addition, it is submitted that the Convention on the Elimination of all forms of Discrimination

Against Women (CEDAW) is relevant for the gender dimensions of the case, as well as the Cairo

Declaration and Plan of Action for the consensus on reproductive rights. Finally, relevant input may be

found in the Convention on the Rights of Persons with Disabilities.

4.1.1. Human Rights and Bioethics/Biomedicine

The ‘relevant international texts’ section in the judgment mentions several provisions in the field of

biomedicine that are directly relevant to the case. There is however no reference to any of these

provisions in the Court’s reasoning.

The Council of Europe Convention on Human Rights and Biomedicine (1997)has been ratified by 29 of

the 47 member states of the Council of Europe, not including the United Kingdom. Its article 5 contains

a ‘general rule’ requiring advance free and informed consent of ‘the person concerned’ to an

intervention in the health field, stipulating that this person may freely withdraw consent at any time.

This provision does not provide clear guidance in the Evans case, as there is room for discussion as to

whether or not the applicant’s partner is a ‘person concerned’ in sense of this Convention. The

indications seem to go in the negative sense, in that the Convention is focused on the health aspects

(which affect only the applicant) and seems to assume that only one person is concerned by any

intervention. The same holds for the consent provision of the Universal Declaration on Bioethics and

Human Rights (UNESCO, 2005).31

Coming closer to the facts of the case, Principle 4 (1) of the principles adopted in 1989 by the ad hoc committee of experts on progress in the biomedical sciences, an expert body within the Council of

30 European Court of Human Rights Research Division, References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights, 2012, available at the website of the Court.

31 “Article 6 – Consent: 1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.”

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Europe which preceded the present Committee on Bioethics32 states: “The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements.” This provision however does not envisage the issue of withdrawal of consent. What is important in these texts, is the strong and consistent emphasis on free and informed consent.

At first sight, this might plead in favour of the applicant’s partner in Evans. However the instruments

do not envisage the situation in which several persons are involved in the same procedure and one of

them withdraws his or her consent to the detriment of the other person. Moreover, the relevant

Council of Europe Convention was not ratified by the United Kingdom, which in some views of what

considers appropriate human rights integration might be an obstacle toward taking it into

consideration.

4.1.2 CEDAW and the Cairo Declaration and Programme of Action

Reproductive rights as equal rights

Both in CEDAW (1979) and in the Cairo texts (1994), reproductive rights are formulated as equal rights

for men and women.33 Nevertheless, it is important to note that the context of the formulation of

reproductive rights in international human rights law is the emancipation and empowerment of

women. This is obvious in CEDAW and also very clear in the Cairo Programme of Action. In neither of

this documents is there however any indication or expectation that women’s reproductive rights

should get priority over men’s in case of conflict. Conflicts between men and women in this field are

not addressed explicitly in either document. They are however very much present at the background,

in the sense that empowering women to exercise control over their reproductive capacity is an explicit

goal of reproductive rights, against a patriarchal context in which many women did/do not have such

control. In that sense, these texts can certainly not be read as accepting priority of men’s rights over

women’s rights in case of conflict.

The gender balance in reproductive rights conflicts

To be clear, the UK rule at stake in Evans does not give priority to men’s rights over women’s rights. It

gives priority to the unwilling partner over the willing partner, and hence to negative reproductive

rights over positive reproductive rights.

32 The mandate of this body was to develop further the principles laid down in the Convention on Human Rights and Biomedicine. 33 Article 16 (1) (e) CEDAW refers to “The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”. Para. 7.3. of the Cairo Programme of action formulates this as “the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.”

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However, I submit that it would be absurd to disregard the gender dimensions of any case that

concerns conflicting reproductive rights within a heterosexual couple.

Reproduction arguably is the one sphere of life where biological differences between men and women

generate the strongest differences in experiences between men and women. I shall argue that these

differences generally result in an advantage for women in situations of conflicting reproductive rights.

Yet the situation in which embryos are stored for later implantation creates a different situation that

allows for a male ‘coup’.

Biology gives women the advantage in reproductive rights conflicts, for mainly two reasons. One, in

order to reproduce, a woman needs only limited cooperation of a man (a one-time event that does

not take much time and is generally experienced as pleasant), whereas a man is dependent on a

woman’s willingness to carry his child in her body during 9 months. Two, the strong bodily link between

a woman and an embryo or foetus during pregnancy creates strong thresholds against any forcible

intervention. In human rights terms, this involves not only autonomy rights, but also physical integrity.

In principle, a reproductive rights conflict may occur already before conception. This is the case when

one partner in a relationship wants to reproduce, whereas the other does not. It is self-evident that in

such a situation, the unwilling partner cannot be forced to participate in conception. Yet situations

abound in which an unwilling male partner is tricked into such participation. Moreover, there is always

the option for the partner who wishes to reproduce, to realize this wish with a different partner. For

women, this option is a lot more accessible than for men, for the reason mentioned earlier, and

because male gametes may even be obtained from a donor who will have no further involvement with

the woman or the child. Yet this difference in access to reproduction is not a discrimination as it is the

result of a fundamental biological difference between men and women.

However, conflicts between positive and negative reproductive rights within a couple become more

pressing when conception has taken place (as is the case in Evans). In case of natural conception, the

exercise of a negative reproductive freedom in such a case would imply either the use of morning-after

contraception or abortion. Morning-after contraception has to be used within a few days after the

possible conception, at a time when one does not yet know whether or not conception has taken place.

That appears to be the most likely explanation why discussions between conceiving parties about the

use of morning-after contraception do not seem to come before courts. With respect to abortion, two

types of such conflicts may occur. The one that leads to regular judicial disputes, is the situation in

which a woman wants to abort the embryo, yet the man who contributed his gametes to the embryo

resists the abortion. In such cases, the European Court of Human Rights considers that the negative

reproductive right of the woman takes priority over the positive reproductive right of the man, as the

continuation or termination of a pregnancy affects her in the first place.34 The reverse situation, in

which the male partner wants an abortion and the pregnant woman refuses this, also occurs regularly

in practice, yet this does not lead to court cases, as it is unthinkable that a court would oblige a woman

to have an abortion against her will. The advantageous position of the woman in both types of

situations is the result of the involvement of her (right to) physical integrity on account of her being

the only partner who is physically involved in the pregnancy.

It is to be noted that this advantageous position with respect to the specific issue of reproductive

choice exists only in conditions in which women have access to contraceptives and to abortion, and

that even in such situations it may be outweighed by men’s social or cultural power. It is to be noted

34 “The Court considers that any interpretation of a potential father’s rights under Article 8 of the Convention when the mother intends to have an abortion should above all take into account her rights, as she is the person primarily concerned by the pregnancy and its continuation or termination”.(Boso v. Italy, 5 September 2002)

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also that the other side of the biological situation is that men can easily step out of the picture after

conception if they do not want to be a social father. Arguably practice shows significantly more exercise

by men of their biological advantage in this sense, than it shows of women exercising their biological

advantage in a reproductive rights conflict with their partner. Yet the point I want to make here is that

the specific issue of reproductive choice within the couple is a rare situation in which biological sex

differences put women in the driver’s seat.

Yet in a ‘frozen embryo’ situation, biology is overruled by technology. IVF with delayed implantation

of the embryo changes the parameters of positive-negative reproductive rights conflicts radically, for

two reasons. One, the need for a medical intervention leads to the explicit expression of consent by

both partners. In natural conception, mutual consent is often implicit or uncertain. Two, an additional

and potentially long time span is inserted between conception and pregnancy; a time span during

which consent may be withdrawn. Three, the woman’s reproductive burden is even heavier in this

situation as she has to undergo the heavy IVF treatment, including ‘a series of sometimes painful

medical interventions designed to maximise the potential for harvesting eggs’.35 In such a situation, it

is even more unthinkable that a woman could be forced to reproduce in order to realize a man’s

reproductive right.

Yet a man’s negative reproductive right gets more sway in this high-tech context compared to natural

conception, as consent to conception can be distinguished from consent to reproduction

(implantation), and as his njet to either conception or implantation does not entail any interference

with the woman’s physical integrity.

This combines to create the opportunity for a male coup in this rare bubble where biology made men

relatively powerless. And this is exactly what the UK legislation effectuates. A rule that gives priority

to the partner who is unwilling to reproduce despite having conceived, may seem gender-neutral yet

it is not. If the woman is the unwilling partner, it is self-evident that reproduction cannot take place,

as in addition to enforced pregnancy, this would imply a forced surgical intervention for implantation.

So this is not where the law takes a stance. The only situation that required taking sides is the one in

which the man is the unwilling partner, and in this one place where it was possible, male control was

restored by the legislator. This was done despite the fact that the preceding process, enabling

conception, has imposed a disproportionate burden on the woman, and that the consequences of

implantation would also affect her alone (pregnancy, childbirth) or her in the first place (parenthood36).

4.1.2. Convention on the Rights of Persons with Disabilities

As discussed above, gender is one characteristic of the applicant that distinguishes her from her

adversary in the case and that is relevant in human rights terms. Disability is another one. Indeed, the

partner who has the main interest in the storing of embryos is not by definition the female partner,

but rather the partner who is affected by a fertility problem. In one third of IVF couples, this is the male

partner. In such cases, it can happen that upon separation, the female ex-partner requests the

destruction of the frozen embryos, which the male ex-partner wishes to have implanted in a new or

35 Evans, para. 62. 36 Cf. the above-mentioned scenario in which men may choose to leave the scene despite pregnancy and childbirth.

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future female partner.37 The infertile partner always has more at stake, because for her/him

reproduction requires a medical intervention, and if this has to be repeated after destruction of the

embryos, it entails significant expenses, time, possibly painful or unpleasant medical procedures, and

new risks of failure, especially as reproductive success rates decrease with age. The fertile partner in

contrast can reproduce without such obstacles, even though social obstacles may occur (i.e. difficulties

in getting a partner to contribute his/her gametes and (in case of a man) to carry the embryo in her

womb). In the specific case of Evans, the difference between the partners in this respect is even

stronger. As the applicant had her ovaries removed for medical reasons, the six embryos that had been

created with the contribution of her ex-partner were her last and only option for genetic reproduction.

The Evans judgment does not give us much information about the applicant’s ex-partner. We know

that at the time the embryos were stored, he told the applicant that ‘he wanted to be the father of her

child’.38 After the separation, the domestic courts mentioned his ‘firm wish not to be father of a child

borne by the applicant’.39 There is nothing to indicate that this man does not wish to reproduce per se.

It seems that he is a person who wants to reproduce within a romantic relationship, and not otherwise,

or at least not with his ex-partner. As a ‘reproductive preference’ this is commonplace. Indeed, it is

likely that this is also the applicant’s preference. However, on account of her infertility, her

reproductive preference cannot be realized, whereas his can.

On account of her infertility, the applicant is a person with a disability in the sense of the UN

Convention on the Rights of Persons with Disabilities (CPD). Article 1 of that Convention states that

‘persons with disabilities include those who have long-term physical, mental, intellectual or sensory

impairments which in interaction with various barriers may hinder their full and effective participation

in society on an equal basis with others’. The Court in Evans examined this issue as a separate allegation

of discrimination in comparison with a woman who does not need IVF to reproduce. Yet it stated simply

that the reasons given for finding that there was no violation of Article 8 ECHR also afford a reasonable

and objective justification under Article 14 ECHR.40 Under the CPD, as opposed to the ECHR, a

particularity about non-discrimination on grounds of disability, is that it includes denial of reasonable

accommodation. "Reasonable accommodation" means ‘necessary and appropriate modification and

adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to

ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human

rights and fundamental freedoms’ (Art. 2 CPD). Other seemingly relevant provisions include article 4

(1)(g) CPD and article 6 CPD. The former stipulates the obligation for States Parties to ‘promote the

availability and use of new technologies, […] suitable for persons with disabilities’ with a view to

‘ensure and promote the full realization of all human rights and fundamental freedoms for all persons

with disabilities without discrimination of any kind on the basis of disability’(art. 4 (1)). The latter is

dedicated specifically to women with disabilities. Article 6 (1) reads: ‘States Parties recognize that

women and girls with disabilities are subject to multiple discrimination, and in this regard shall take

measures to ensure the full and equal enjoyment by them of all human rights and fundamental

freedoms’.

37 Cf. J.B. v. M.B. judgment, Supreme Court New Jersey 2001, cited in Evans para 47 (case in which the husband however is not infertile). However in the large majority of such cases, sperm will be stored rather than embryos. 38 Evans, para. 15. 39 Evans, para. 25. 40 Evans, para. 95.

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4.2. Integrated Three-Step Model

Step 1: Can this be considered a fake conflict between human rights?

As stated at the start of this paper, the Grand Chamber frames the Evans case as a dilemma that

opposes entirely irreconcilable interests. This suggests that there is no way around the conflict of

human rights, and that no compromise solution is possible either.

I do not necessarily agree with that position. The question in Evans is whether six embryos that the ex-

partners agreed to make and store, can be destroyed upon the request of one of them against the wish

of the other. If that request is granted, the applicant loses any possibility to genetically reproduce.

Hence there is no doubt that this case affects her reproductive right/freedom, as it interferes directly

with both her reproductive capacity and her reproductive choice. From her perspective this is

manifestly a human rights issue. On the other side, it is not clear whether the applicant’s legal right to

have the embryos destroyed can be qualified as a human right. If the embryos remain in storage,

nothing changes. His human right of reproductive choice comes into play only in case an embryo is

implanted.41 However, there is no indication that the applicant has any concrete plans in that sense.

Her arguments in the case are about preserving her reproductive capacity, not about using it. It is very

frequent in practice that frozen gametes or embryos are not used.42 In my opinion, the applicant’s

claim does not fall under any Convention right. Given the very fundamental nature of the human right

that is at stake for the applicant, it cannot be outweighed by the applicant’s interest in seeing the

embryos to which he contributed his gametes destroyed.

The Court seems to have run ahead of the facts and interpreted the situation as if refusing the applicant

the right to have the embryos destroyed automatically implied that he lost the right to object to their

implantation. Yet the facts and the law in the case show otherwise. The applicable law stipulated that

an embryo cannot be received by anyone without the consent of each individual whose gametes were

used for its creation.43 The applicant’s ex-partner’s consent was given for ‘the use of the embryos for

the treatment of himself and the applicant together’44. Hence, if he lost the case over the destruction

of the embryos, he would still need to consent to the implantation of the embryo, as this no longer

concerns the treatment of a couple, but the treatment of the applicant alone. The case contesting his

refusal of consent would be the real case involving a conflict between positive and negative

reproductive rights.

However, for the sake of the argument- and because this is the route taken by the Court, let’s proceed

as if implantation of the embryos is an automatic consequence of the refusal to destroy them. In that

scenario, the conflict between Natallie Evans and her ex-partner is not a false conflict between human

rights. Yet making abstraction of the case itself, it is important to note that today, many similar conflicts

can be avoided by encouraging and facilitating the separate storage of female and/or male gametes

prior to IVF, rather than the storage of embryos after IVF. If preventing painful conflicts between

human rights is the main objective, as I submit, then state authorities should orient reproductive health

policies and regulations in this sense.

41 For that reason I do not agree with the ECtHR’s qualification of the case as being about the right to respect for both the decisions to become and not to become a parent in the genetic sense’ (cf. supra). 42 Cf. Press Release UZ Brussel, 9 July 2013: ‘Eicellen invriezen om sociale redenen: vrouwen voelen zich er goed over, hoewel velen geloven dat ze nooit hun ingevroren cellen zullen gebruiken”. 43 Para 6 (2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990. 44 Evans, para 16.

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Step 2: Can a compromise solution be found?

Even if we accept that there is a real conflict between Convention rights in Evans, I do not think that a

solution can be found only by giving one party’s right absolute priority over the other’s. While it will

necessarily be so that allowing a child to be born implies that the applicant’s right prevails and not

allowing it signifies that the ex-partner’s right prevails, there appears to be some room for nuance. In

particular it would be worth digging into the ex-partner’s claim. We know that the applicant’s human

rights claim is about genetic reproduction. It is not clear from the facts of the case as related in the

judgment to what extent this is the case for the ex-partner. It is very well possible that the scenario he

wishes to avoid is in fact the social parenthood of a child with his ex-partner.

In that sense, two scenarios are thinkable. One is the scenario in which the ex-partner would be in the

position of a man who has broken up a relationship with a pregnant partner. Such a man would be

entitled to keep contact with the child, and the child would have such rights vis-à-vis the man. The

other is the scenario in which the ex-partner is treated as a sperm donor, in which case the child would

have no claims toward him or vice versa.45

Intuitively, many would assume that a person in the position of the ex-partner would fear the first

scenario. He might be haunted by the idea that, despite any oral commitment to the contrary, one day

an unknown teenager would ring at his door and want to be supported by him, either socially or

financially. If that is the real issue, it can be addressed through legal arrangements that preclude any

financial claim and through other arrangements that would make future social claims highly unlikely.

In the concrete case however, some of the man’s statements to the press seem to suggest the opposite

scenario, in which he fears the role of the sperm donor. He is quoted as saying ‘It would be difficult to

know I had a child and I wouldn't know about the upbringing. If you looked me in the eye and asked

me whether I wanted to have a child with Natallie I would say no. It's the fact I'd have no input into

the upbringing.’46 If that is the case, the situation might be addressed by negotiating a solution that

guarantees future contact with any child that would result from the embryos.

Hence I submit that in some situations of this type, possibly even in the Evans case itself, it may be

possible to find a compromise solution that grants the wish of the partner who wishes to reproduce as

far as it comes to genetic parenthood, while tailoring a practical solution that grants the wish of the

other partner in the field of social parenthood.

Yet let’s assume that the ex-partner’s position is essentially a refusal to become a genetic father of a

child of his ex-partner. If that is the issue, a compromise solution does not appear possible, and we

need to give priority to one person’s right over the other’s.

Step 3: Ruling on Priority

From among the prioritization criteria mentioned above, the core-periphery/severity criterion seems

the most relevant one in this case. The distinction between positive and negative obligations is not

45 This can be slightly nuanced as it depends on relevant domestic law in each country. 46 Clare Dyer and Karen Mc Veigh, ‘Woman loses battle to use frozen embryos created with her ex-fiance’, The Guardian, 11 April 2007, http://www.theguardian.com/society/2007/apr/11/health.medicineandhealth1 .

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easy to make in this case,47and hence cannot be a useful priority rule. Moreover, as the embryos are

not considered subjects of human rights, there is no indirect involvement of the rights of third persons.

Nor do I distinguish any clear general interest in this case. It is a case opposing two individuals. It can

be argued however that for the applicant, in addition to her reproductive rights, the case affects her

right not be discriminated against on grounds of sex and/or disability and her right as a disabled woman

to have public authorities facilitate her participation in all spheres of life (cf. supra).

Which party is hit hardest in case the other party wins? That is the line of reasoning under the core-

periphery/severity criterion. If the applicant wins, she keeps her choice to genetically reproduce in the

future, yet her ex-partner will be the genetic father of her child against his wish. If the applicant loses,

her ex-partner keeps his full range of reproductive choices, yet she can never be a genetic parent. Do

both situations affect the core of reproductive rights/freedoms? I submit that this is not the case.

If they could optimize their reproductive freedom, each of the two individuals involved would 1) not

have a child of which the other is a genetic parent; 2) keep their freedom intact to decide whether,

when and with whom to reproduce. While the first issue involves a specific instance of the exercise of

a right, the second involves the right as such. While both individuals would ideally want the same thing,

they are however not similarly situated on account of the applicant’s disability. This leads her to prefer

a suboptimal solution as the ‘least bad’ solution, because it is the only one that allows her to keep

some of her capacity to exercise the right as such. Whereas he, who is unaffected by similar disability,

has access to an optimal scenario, in which he does not become the genetic parent of a child of his ex-

partner and keeps his full freedom to reproduce or not. He has no reason to prefer or accept the sub-

optimal solution in which he keeps his reproductive freedom except for the six embryos he has helped

create with his ex-partner.

As the tables below show, the unequal starting position of the two parties, caused by disability, has a

strong impact on the outcomes generated by scenarios that prioritize one right over the other.

Scenario 1: Applicant loses

His situation Her situation

Level of exercise of right PLUS: all he wants NONE

Access to right as such PLUS: limitless choice NONE

Scenario 2: Applicant wins

His situation Her situation

Level of exercise of right MINUS: Does not want genetic fatherhood – at this time

- with this partner

PLUSMINUS: wants motherhood at this time, but would not have chosen this partner

Access to right as such LIMITED: Infinite choices, except for minus above

LIMITED : 6 embryos = 6 chances to exercise choice (within the limits of medical science)

47 The Court treats the case as a conflict between positive obligations (Evans, para. 76), yet the domestic judges had treated it as a case involving negative obligations (ibid.), and so do the dissenters.

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While the scenario in which the applicant loses (the case as it stands) is an all-or-nothing formula, the

opposite scenario is a lot more nuanced, in fact resembling more a compromise solution than a

prioritized solution. The applicant’s disability exacerbates her loss in the first scenario: it is complete

and absolute in the sense that the loss of her last gametes closes off any access to her right to choose

to become a genetic parent. In addition, in the second scenario, the applicant’s disability moderates

her gain. Even in the second scenario the applicant’s right to choose to become (or not) a genetic

parent (bottom category) is significantly more limited than her ex-partner’s right.

Hence, I submit that in terms of severity of the interference, the second scenario is to be preferred.

Expressed in terms of core and periphery, there can be no doubt that the core of the applicant’s right

is affected- even annihilated- in the first scenario. I am not persuaded that the interference with the

ex-partner’s right in the second scenario affects the core of his right, especially given the fact that the

modalities of social fatherhood can be arranged according to his preference.

This is strengthened by the arguments that can be derived from the CPD. The applicant’s disability does

not have to stand in the way of her having genetic offspring. Yet it does, on account of her ex-partner’s

(right to) objection. By making an exception to the law requiring sustained consent for persons in the

situation of the applicant, the UK legislator would act toward realizing CPD obligations. The situation

is very specific in that the burden of facilitating the applicant’s reproductive rights despite her disability

would fall on a single person, i.e. her ex-partner, and that there is no alternative. In a situation in which

reasonable accommodation is requested of an employer for example, one can always consider

different employers, for whom accommodation might be easier or harder. Yet in this case, only one

person can potentially be concerned. In that sense –within the CPD paradigm that considers disability

as a social rather than a medical issue – one may state that the ex-partner, rather than the applicant’s

medical condition, is the cause of her disability. The relevant question is whether overruling his lack of

consent can be considered an ‘undue burden’ under the reasonable accommodation test. It may be

argued that, if the issues regarding social parenthood can be arranged according to his preference, and

hence the only remaining issue is one of genetic parenthood at this particular time and in conjunction

with this particular other person, there is no undue burden. In my opinion this is the case because the

impact on him is mainly of a psychological nature (as opposed to the applicant, for whom it concerns

a central part of her life project in very practical terms) and because of his unique position as the single

person who controls the applicant’s access to a very fundamental right. These combine to enable a

different mindset to significantly ease his burden. I am thinking in particular of a framing that considers

this as assistance to a person with a disability by a person who is uniquely placed to do so (cf. a donor

of bone marrow or a kidney), rather than as a loose tail from a former relationship.

Finally, a women’s rights perspective confirms the same solution. It would not be in line with the

central goal of the recognition of reproductive rights, which is the empowerment of women, to

endorse a solution that utterly disempowers an already vulnerable woman. The applicant has a point

when she states that the legal arrangement made her fundamental rights dependent upon her ex-

partners’ whim’. He was indeed ‘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.’48The male ‘coup’ as described above is

48 Evans, para 62.

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not justified in the broader context of power relations, in society as a whole as well as in this particular

situation.

5. By way of conclusion

As the above analysis as shown, there are at least three ways in which a different outcome in the Evans

case can be justified. Each of these scenarios relates to one of the steps in the three-step test for

addressing conflicts between Convention rights.

The first approach unmasks the case as one that does not really involve a conflict between Convention

rights. Once the ex-partner’s right has been relabeled as a mere legal right, not a human right, a strong

claim can be made that the applicant’s Convention right should be made to prevail.

In the second step, it was shown that in all likelihood it is possible to design a compromise solution

that preserves the applicant’s rights, but follows her ex-partner’s preferences with respect to social

parenthood. Under the three-step model, a compromise solution is by definition to be preferred over

a solution that gives priority to one person’s rights over those of the other person.

Finally we have argued that, if it has to come to prioritization between competing rights, all criteria

combine to argue that the applicant’s right should be given priority. Her rights as a woman with a

disability are a crucial factor in this.