In 2001, the applicant had her eggs extracted for the purposes of in vitro fertilization. Subsequently, her ovaries were removed due to the presence of tumors. Six embryos were created using her eggs and the sperm of her partner. The law in force allowed for the withdrawal of consent by either party prior to ‘use’ of the embryos. Both applicant and her partner signed consent forms stipulating the ability to withdraw consent. In 2002, the applicant’s relationship with her partner ended and he withdrew his consent for the applicant to use the embryos.
The applicant sought an injunction invoking articles 2 (right to life), 8 (right to private and family life), and 14 (right to non-discrimination) of the European Convention on Human Rights. She argued under Article 2 that the embryo was entitled to a right to life; under Article 8 that allowing for the withdrawal of consent would violate her right to respect for her private and family life because she would be deprived of any opportunity to produce genetically related children; and under Article 14, in conjunction with Article 8, that the law was discriminatory on the basis of sex because women who have children through intercourse are not subject to the father’s withdrawal of consent post-fertilization.
The national courts rejected her claims and she appealed to the European Court of Human Rights.
Considering her case the European Court first held that the embryo was not entitled to a right to life under Article 2, and therefore no Article 2 violation had occurred because there is no European consensus as to when life begins. The Court therefore looked to domestic law, which provided no independent rights or interests to an embryo.
The Court also found that there was no violation of the applicant’s rights under Article 8. It held that the applicant’s right to decide to become a genetic parent did not outweigh her partner’s right to decide not to become a genetic parent, and therefore the law permitting withdrawal of consent up until implantation represented a fair balance of the competing interests. The Court also found that the consent provision served a certainty function, and that the applicant had always been aware that the law allowed withdrawal of consent prior to embryo implantation. The Court also held that because there was no violation of the applicant’s Article 8 rights, there was no violation of her Article 14 rights in conjunction with Article 8.