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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Evans v Amicus Healthcare Ltd & Ors (includes Summary of Judgment)  EWHC 2161 (Fam) (01 October 2003)
Cite as:  EWHC 2161 (Fam),  2 WLR 713
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Strand, London, WC2A 2LL
B e f o r e :
| NATALLIE EVANS
|AMICUS HEALTHCARE LTD (1)
HOWARD JOHNSTON (2)
ROYAL UNITED HOSPITAL BATH NHS TRUST (3)
THE SECRETARY OF STATE FOR HEALTH (4)
THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY (5)
|AND BETWEEN: -
|MIDLAND FERTILITY SERVICES LTD (1)
WAYNE HADLEY (2)
THE SECRETARY OF STATE FOR HEALTH (3)
THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY (4)
MR ROBIN TOLSON QC AND MS SUSAN FREEBORN (instructed by Messrs Withy King Solicitors for the Claimants)
DR KRISTINA STERN (instructed by Messrs Bevan Ashford Solicitors)
for Amicus Healthcare Ltd and the Royal United Hospital Bath NHS Trust and
(instructed by Young & Lee) for Midland Fertility Services Ltd.
MR KAMBIZ MORADIFAR AND MS VANESSA MCKINLAY (instructed by Messrs Davey Son & Jones Solicitors) for Mr Howard Johnston
MR STEFANO NUVOLONI (instructed by Messrs Baches Solicitors)
for Mr Wayne Hadley
MR JASON COPPEL (instructed by the Office of the Solicitor for the Dept of Health
for the Secretary of State for Health
MISS DINAH ROSE (instructed by Messrs Morgan Cole Solicitors)
for the Human Fertilisation and Embryology Authority
Hearing dates : 30 June – 4 July 2003
Crown Copyright ©
Mr Justice Wall :
Glossary and index
(1) "The Act" means the Human Fertilisation and Embryology Act 1990.
(2) "AID" means artificial insemination by donor
(3) "The Authority" means the Human Fertilisation and Embryology Authority.
(4) "The Clinic" in the case of Ms Evans and Mr. Johnston means Bath Assisted Conception Clinic and in the case of Mr and Mrs Hadley means Midland Fertility Services Limited. "The Clinics" means both.
(5) "The Convention" means the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated into English law by the Human Rights Act 1998.
(6) "HRA 1998" means the Human Rights Act 1998.
(7) "ICSI" means Intra Cytoplasmic Sperm Injection
(8) "IVF" means in vitro fertilisation
(9) PGD means Pre-Implantation Genetic Diagnosis
(10) "The Secretary of State" means the Secretary of State for Health
(11) "Warnock" means the Report of the Committee of Inquiry into Human Fertilisation and Embryology, chaired by Dame Mary Warnock DBE, July 1984: Cmnd 0314
(12) "The White Paper" means Human Fertilisation and Embryology: A Framework for Legislation: November 1987: HMSO Cm 259
|Introduction: the cases in broad outline and as pleaded||3 to 15|
|The history of the Act||16 to 17|
|Statutory interpretation as applied to the Act||18 to 19|
|The relevant provisions of the Act||20 to 29|
|Schedule 3 to the Act||30 to 36|
|The two most important principles underlying the Act||37|
|The Facts in the case of Ms Evans and Mr. Johnston||38 to 43|
|The Events of 10 October 2001||44 to 56|
|My findings of fact in relation to the events of 10 October 2001||57 to 67|
|The consents which Ms Evans and Mr Johnston signed on 10 October 2001||68 to 83|
|Events after 10 October 2001||84 to 93|
|The facts in the Hadley case||94 to 103|
|The first point of law: Are the consents given in this case capable of operating so as to enable the clinics to treat Ms Evans and Mrs Hadley on their own?|
|The argument||104 to 131|
|Discussion and Analysis||132 to 149|
|The second point of law: Have the remaining embryos in Mrs. Hadley's case been "used" in the provision of treatment services, so that Mr. Hadley's consent to their use cannot be varied or withdrawn?|
|The argument||150 to 154|
|Discussion and analysis||155 to 165|
|The Claims under the Human Rights Act 1998|
|Introduction||166 to 173|
|Article 2: the Right to Life||174 to 179|
|Article 8: the Right to respect for private and family life|
|Is Article 8 engaged?||180 to 182|
|Is there an interference with the right to respect for private life in this case?||183 to 185|
|The evidence filed on behalf of the Secretary of State||186 to 188|
|The case for Ms Evans and Mrs Hadley under Article 8||189 to 228|
|The Argument for the Secretary of State||229 to 244|
|The case for Mr. Johnston and Mr Hadley under Article 8||245 to 247|
|Conclusions on Article 8||248 to 260|
|Article 12: The right to marry||261 to 265|
|Article 14: Prohibition of Discrimination||266 to 277|
|Conclusions under HRA 1998 and the Convention||278|
|Can an estoppel exist in the face of the Act?||279 to 297|
|The ingredients and parameters of promissory estoppel||298 to 304|
|Application of the principles of estoppel to the present case||305 to 311|
|Information from other jurisdictions||311 to 314|
|Footnote||316 to 320|
|Summary of the judgment||Summary|
Introduction: the cases in broad outline and as pleaded
a. A declaration that (Mr. Johnston) has not and may not in the future vary or withdraw his consent given on 10th October 2001 to the storage or use of the embryos.
b. An injunction requiring Mr. Johnston to restore his consent to the storage and use of the embryos.
c. A declaration that the embryos may lawfully be stored until 9th October 2011 (the expiry of the 10 year storage period for which consent was originally given).
d. A declaration that the claimant may lawfully be treated with the embryos during the storage period.
e. If necessary, a declaration of incompatibility pursuant to section 4(4) of HRA 1998 to the effect that section 12 and paragraphs 6(3), 8(2) and 4(1) of Schedule 3 of the Act
(i) constitute an unnecessary interference with (Ms Evans') right to respect for her private and / or family life under Article 8 of the Convention;
(ii) fail to secure (Ms Evans') right to found a family under Article 12 of the Convention;
(iii) permit discrimination against (Ms Evans) as a result of her infertility and /or disability, contrary to Article 14;
(iv) Fail to accord the embryo with any protection for such rights under Articles 2 and 8 as its status may justify; further or alternatively fail to protect any proprietary / possessory interest (Ms Evans') may enjoy in respect of the embryo pursuant to Article 1 of the First Protocol of the Convention.
f. Such interim orders preserving the embryos as may be necessary in the event that the clinic alters its present position where it has agreed to continue to store the embryos.
5. Before undergoing IVF treatment (Ms Evans), realising that the eggs to be harvested from her represented her last chance of bearing a child, discussed with (Mr. Johnston) what should happen if their relationship were to end. In particular, on a date presently unknown to (Ms Evans) she suggested to (Mr. Johnston) in the presence of a member of the nursing staff at the clinic known to (Ms Evans) only as "Pam" (Mrs. Spearman) that she should have some of her eggs frozen, as opposed to be fertilised so that if necessary they might later be fertilised by sperm from a donor other than (Mr. Johnston) and be available for her use.
6. By his words and actions (Mr. Johnston) gave (Ms Evans) to understand that any embryos created from his sperm would always be available for her to use and that there was no need to consider other options. Amongst other things, he told the claimant that he loved her, wanted to share his life with her, would never leave her and was anxious to be a father ((Ms Evans) gives the gist of the words used). The couple discussed the position generally and agreed that sperm from (Mr. Johnston) would be used to attempt to fertilise all the eggs which were harvested
7. When agreeing to fertilise all the eggs, (Mr. Johnston) knew that these eggs would represent (Ms Evans') last chance to bear a child naturally. He knew, further, that (Ms Evans) would, but for his assurances, have sought advice about and investigated in discussions with the clinic the possibilities of 'insuring' against the breakdown of their relationship, whether by freezing unfertilised eggs (which Ms Evans understands to be a problematic procedure) or by storing eggs fertilised by a donor other than (Mr. Johnston).
34. If and to the extent that (Mr. Johnston) had a legal right, whether contractual or arising under the Act, to vary or withdraw his consent, then he represented by the words and conduct set out above that his consent would be irrevocable or that it would not be withdrawn in the present circumstances.
35. (Ms Evans) relied on the representation in deciding not to seek further advice on the storage of unfertilised eggs or embryos created using sperm from another donor. It is (Ms Evans') case that in the absence of the assurances she received from (Mr. Johnston) she would have taken every opportunity to maximise her prospects of having children in the future including specifically the storage of unfertilised eggs or eggs fertilised by another donor or by investigating other treatments for her cancer than the removal of her ovaries.
36. In the circumstances, (Mr. Johnston) is estopped from relying on any legal right to vary or withdraw his consent.
The history of the Act
 The birth of the first child resulting from in vitro fertilisation in July 1978 prompted much ethical and scientific debate which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of Dame Mary Warnock to—
'consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.'
The committee reported in July 1984 (Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd 9314) (the Warnock Report)). A White Paper was published in November 1987 Human Fertilisation and Embryology: A Framework for Legislation (Cm 259) when the Department of Health and Social Security recognised (para 6) 'the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development'.
 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 briefly described in , above. The merits of this solution are not a matter for the House in its judicial capacity. It is, however, 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.
Statutory interpretation as applied to the Act
 The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.
The relevant provisions of the Act
An Act to make provision in connection with human embryos and any subsequent development of such embryos; to prohibit certain practices in connection with embryos and gametes; to establish a Human Fertilisation and Embryology Authority; to make provision about the persons who in certain circumstances are to be treated in law as the parents of a child; and to amend the Surrogacy Arrangements Act 1985
(1) By section 1(1)(a), an embryo is defined as "a live human embryo where fertilisation is complete, and by section 1(1)(b) "references to an embryo include an egg in the process of fertilisation;
(2) Section 1(2) of the Act provides that in so far as it governs bringing about the creation of an embryo, the Act applies only to bringing about the creation of an embryo outside the human body
(3) By section 1(3), insofar as it governs the keeping or use of an embryo, the Act applies only to keeping or using an embryo outside the human body;
(4) By section 2(1), "treatment services" are defined as "medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children";
(5) By section 2(2), references in the Act to keeping, in relation to embryos or gametes, include keeping while preserved (whether by cryopreservation or in any other way). Embryos so kept are referred to in the Act as "stored".
(a) bringing about the creation of embryos in vitro
(b) keeping embryos,
(c) using gametes
(d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose,
(e) placing any embryo in a woman ……
A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.
Schedule 3 to the Act
(1) "use in providing treatment services to the person giving consent, or that person and another specified person together";
(2) "use in providing treatment services to persons not including the person giving consent";
(3) "use for the purposes of any project of research."
A consent may specify conditions subject to which the embryo may be so used.
"Before a person gives consent under this Schedule, he must be informed of the effect of paragraph 4 below."
"(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."
The two most important principles underlying the Act
The two most important principles to be found in the Act are the welfare of any children born by treatment under the provisions: see for instance section 13(5) and the requirements of consent (see Schedule 3(5), section 28(2) and the statutory consent forms, and Annex C to the Code of Practice. Hale LJ said in U v Centre for Reproductive Medicine:
The whole scheme of the 1990 Act lays great emphasis upon consent. The new scientific techniques which have developed since the birth of the first IVF baby in 1978 open up the possibility of creating human life in ways and circumstances quite different from anything experienced before then. These possibilities bring with them huge practical and ethical difficulties. These have to be balanced against the strength and depth of the feelings of people who desperately long for the children which only these techniques can give them, as well as the natural desire of clinicians and scientists to use their skills to fulfil those wishes. Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it."
The facts in the case of Ms Evans and Mr. Johnston
The events of 10 October 2001
14. On 10 October 2001, Howard (Mr. Johnston) and I went to see Nick Johnson (a consultant in gynaecological oncology who had carried out the formal laparotomy and ovarian cystectomy with Mr. Jaaback on 27 September) at the RUH. He told me that I would need a laparotomy procedure to remove my ovaries and my fallopian tubes. It was a complete shock and I was devastated.
15. He told me that because I needed to have my ovaries and fallopian tubes removed I had to consider whether I wanted to try IVF now before it was too late. He took Howard and I over to see Mr. Nick Sharp at the clinic to discuss this.
16. Twenty minutes after being told that I had ovarian cancer, Howard and I were sitting down with Mr. Sharp who explained what our options were. He told us that we could have one cycle of IVF treatment to attempt to harvest some eggs. Howard and I agreed with Mr. Sharp that before I underwent surgery to have my ovaries and fallopian tubes removed I would have some eggs harvested, which Howard would then fertilise. The embryos that resulted could then be frozen for use after my surgery so we could still have a family……
18. We saw Mr. Sharp and then went into another room where we saw Pam Spearman, one of the nurses. We signed the consent forms that we were asked to sign and I was shown what I needed to do in terms of injections and using a nasal spray.
19. I would say that our whole visit to the clinic took no more than about an hour. I know that during this visit we discussed a lot of things about the IVF treatment and what it would involve. It was a bit overwhelming. I was very anxious about my cancer, the surgery I needed and the whole IVF process. It was difficult to take in everything that we were told, and I have no clear recollection of what was or was not discussed.
22. Howard and I then attended the clinic on a regular basis. I recall one specific occasion, prior to the eggs being harvested, when we were with Pam Spearman. I cannot be certain of the date. I believe it was while we were in the process of having treatment. I cannot remember how the conversation started, but I asked Pam whether we had to have all the eggs that were harvested fertilised and then frozen. I asked whether it was possible simply to have my eggs frozen. Pam replied that they did not carry out that procedure at the clinic and that if I wanted to have my eggs frozen prior to them being fertilised I would need to go to another IVF clinic.
23. At this point Howard told me not to be stupid and that there was no need for that. He told me that he loved me, that we would be getting married and having a family together. I said, "But what if we split up?" Howard told me that we were not going to and that I should not be such a negative person.
24. I suggested that perhaps we freeze some of the eggs and that if we were still together in a couple of years' time and wanted to use them he would always fertilise them then. He told me again that we would not be splitting up, that our future was together and that he loved me. He told me that he loved me, that he wanted to have a family and that I was the woman he wanted to share his life with. He told me that he would never leave me, and that he wanted to be the father of my children. I told him that I loved him and trusted him.
25. Pam Spearman was present throughout this conversation. She said that we would need to really think about what we wanted and to make up our minds what we wanted to do. Howard continued to reassure me and in the end I simply accepted what he said and we just carried on. It was not mentioned again.
9. I recall that the claimant and I then attended a further consultation with Pamela Spearman. Mrs. Spearman explained, in further detail, IVF treatment. It had already been made clear to us that the Clinic would not be able to store any unfertilised eggs and that if this was to be considered, we would have to attend an alternative clinic.
10. Eventually, (Ms Evans) and I signed consent forms for the IVF treatment at the Clinic. The contents of the consent forms were explained to us. Indeed, we were taken through the consent forms on a paragraph by paragraph basis. It was obviously made clear to us that the consent of both myself and (Ms Evans) would be required before anything could be done. It was also explained to us that the continued storage of the embryos would be considered on an annual basis so as to ensure that both myself and (Ms Evans) wanted the storage to continue. In addition, it was clear that upon the termination of our relationship the storage and use of the embryos would need to be reviewed. It was therefore clear that we would still maintain freedom to choose either whether we wanted to start a family together or when we would start a family together. I suppose I was reassured by the fact that I would still maintain the same control regarding this decision as I would had these unfortunate events not occurred. Having said that, I would estimate that the entire consultation lasted approximately 90 minutes. This was from the diagnosis being given to (Ms Evans) and us embarking on a course of IVF treatment. As outlined above, the circumstances were far from ideal. (Ms Evans) and I certainly had no opportunity to discuss matters in details privately. In fact, the only time we had time to discuss matters alone was when we talked in whispers for about 60 seconds whilst staff went to obtain an IVF kit.
11. I obviously wanted to reassure (Ms Evans) during this difficult time. I was concerned for her welfare. I cannot recall providing her with any specific reassurances at this time. As outlined above, save for about 60 seconds or so, (Ms Evans) and I were not alone. However, it is highly likely that I would have been trying to reassure and support (Ms Evans). I could hardly have done anything else in the circumstances. Certainly, I did not enter into any form of legally binding agreement with (Ms Evans). I would have only provided (Ms Evans) with assurances, the nature of which are frequently given on a daily basis in any relationship. As far as I am concerned, both myself and (Ms Evans) were fully aware of the basis upon which the embryos would be stored and used, namely in accordance with the consent forms which were fully explained to us, and which were signed by both of us.
……. the couple required particularly careful and detailed information and support to ensure that they were in full possession of all the physical, emotional and legal elements of the IVF treatment in order to understand its full implications.
16. I made it clear to the couple that the Clinic would not take any action to dispose of the embryos in storage without contacting both parties. Likewise, I confirmed that nothing would be done with the embryos without the consent of both partners. I also explained that the Clinic would write to them on an annual basis to check that both partners still wanted their embryos to remain in storage.
17. Clause two of paragraph 4 (of the consent form) states that: "Upon the cessation of our domestic relationship by divorce or legal separation we understand that the storage and use of the embryos must be reviewed". I explained to Ms Evans and Mr. Johnston that this applied equally to unmarried couples. I also explained that they should notify the clinic of any change or breakdown in their relationship.
18. I also elaborated upon what was meant by "reviewing" the storage and use of embryos. I explained that, in the event of the breakdown of their relationship, it would not be possible for them to attend with a new partner and expect the Clinic to treat them using the same embryos.
23. I recall that Ms Evans seemed quite tense during our meeting and she was very naturally upset about the operation she was going to have. However, I had no concerns about her relationship with Mr. Johnston: they appeared to be very happy together and he came across as being very supportive of Ms. Evans. He did mention that his mother had expressed some concerns about him pursuing this course of treatment with Ms Evans, but Mr. Johnston himself seemed committed to his partner.
24. I do not recall Ms Evans asking me about alternative treatments available although I am aware that she has suggested she asked me about the possibility of oocyte freezing. The question of oocyte freezing is frequently raised by couples who, at initial consultation, may not be aware of or understand the difference between oocytes and embryos. Had such a query arisen regarding treatment, I would have referred the couple back to Mr. Sharp and the wider team for further discussion and consultation. This is because if oocyte freezing had been raised, it would have suggested to me that there was some doubt about them seeking treatment as a couple. This would have changed both my and the team's perception of the suitability and appropriateness of IVF treatment for the couple since the welfare of any potential child or children from such treatment is always our paramount concern.
9. With regard to egg freezing, it is possible that Ms Evans asked me whether or not the Clinic offered egg freezing as a service to patients. Many patients have read or heard about egg freezing, and many confuse embryos and eggs. It was relatively common for patients to ask about egg freezing and I would not have found such a query remarkable if it had come from Ms Evans. I would simply have explained that the Clinic did not offer it as a service to patients.
10. In contrast, if Ms Evans had indicated that she wished to pursue egg freezing as an option, this would have raised concerns about her and Mr. Johnston receiving treatment as a couple. I would therefore have referred them back to Mr. Sharp and am sure that I would recall such a conversation if it had occurred in the manner described by Ms. Evans.
My findings of fact in relation to the events of 10 October 2001
The consents which Ms Evans and Mr Johnston signed on 10 October 2001
1. I consent to [delete / complete as applicable]
(i) be prepared for egg retrieval;
(ii) the removal of eggs from my ovaries with the aid of ultrasound;
(iii) the administration of any drugs and anaesthetics which may be found necessary in the course of the procedure(s)
(iv) the mixing of the following: [tick each column as required];
my egg(s) with the sperm of my partner/ husband ("husband" is deleted)
2. I understand that if the donor has given effective consent under (the Act), the donor will not be the legal parent of any resulting child.
3. I have discussed with Mr. Sharp / Pam Spearman the procedures outlined above. I have been given information orally and in writing about them.
4. I have been given a suitable opportunity to take part in counselling about the implications of the proposed treatment (using donated sperm or eggs, or any IVF treatment).
(a) upon their joint request for their use in a future treatment cycle;
(b) upon jointly signed written request by them to discontinue storage;
(c) at the expiration of an agreed period of time but in any event no longer than ten years from the date of the commencement of storage.
I am not married to Natallie Evans, but I acknowledge that she and I are being treated together, and that I will become the legal father of any resulting child.
N.B 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 or withdraw this consent at any time except in relation to eggs or embryos which have already been used.
Patients wishing to store their eggs should note that egg freezing and the use of frozen eggs in treatment are experimental techniques. Not all eggs will survive the freezing and thawing process, and sometimes no embryo will be created using frozen eggs. There have not yet been enough treatments to be able accurately to predict the chance of a baby being born using frozen eggs. You are strongly advised to read the HFEA information leaflet on egg freezing before giving your consent.
(b) I hereby consent to my egg(s) being fertilised in vitro to develop embryo(s) and to the use of those embryo(s) for the following purposes: -
i In the treatment of myself Yes
in the treatment of myself with a named partner Yes
Full name of partner Howard Roy Johnston
ii in treating others No
iii in any project of research No
I hereby consent to the use of my sperm to fertilise egg(s) in vitro and to the use of embryo(s) developed from these egg(s) for the following purposes:
i. in the treatment of myself together with a named partner Yes
Full name of partner: Miss Natallie Evans
ii. In treating others No
iii. in any project of research No
Events after 10 October 2001
The facts in the Hadley case
The first point of law: are the consents given in this case capable of operating to enable the clinics to treat Ms Evans and Mrs Hadley on their own?
(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 and the embryo is used in accordance with those consents
I find the respondent knew of the hospital consultations, that the information relayed by the applicant was a truthful account of their common intentions and attempts to conceive despite the geographical constraints occasioned by work commitments. The respondent knew what was involved and after some initial hesitation he consented to the giving of sperm as part of a joint enterprise and he made a journey involving an air flight in order to do so. His version that there was no sex after 1989, possibly not even a meeting in 1990, and then an agreement merely as a casual favour to give sperm in the summer of 1991, makes no sense at all and I reject it. I do not find he donated as though he was an anonymous donor doing a favour which could have no repercussions for him. On the contrary, he was playing his essential role in aiding the applicant to achieve what both had been trying for, namely a pregnancy.
I have no doubt that there is a mental element inherent in the notion of 'treatment . . . together' and that, if the respondent had believed at all material times that the treatment which was being provided was treatment in which his sperm alone was to be used, Dr A's treatment of the applicant with donor sperm would not have amounted to services provided for them together.
That hypothesis, however, does not fit the facts of this case.
The test in s 28(3)(a) is not whether the man consented either to be deemed in law to be the father of the prospective child or to become legally responsible for him: it is whether the relevant treatment services were provided for the woman and him together. It stretches the requisite mental element in the man too far to require either form of such consent. In my view, what has to be demonstrated is that, in the provision of treatment services with donor sperm, the doctor was responding to a request for that form of treatment made by the woman and the man as a couple, notwithstanding the absence in the man of any physical role in such treatment.
I am satisfied that "a course of treatment" is for the purpose of s 28(3) that which is spelled out in the consent form of the mother which her partner joins in by acknowledging the legal consequences to him. It seems to me that if circumstances change not only can either party withdraw if they so choose but that under the current Code of Practice the hospital, if informed, should bring that course of treatment to an end. If however that is not done then in my judgment the original course of treatment continues as treatment services provided to both of them together and, if a child is conceived in the course of that, the man will be the father. ...emphasis supplied)
Section 28(3) cannot mean that the man is to be treated as the legal father if at some time during the provision of treatment services for the woman they were provided for them together. Gametes and embryos can be stored for up to ten years or even longer in some circumstances. There must be a point when the question has to be judged. The simple answer is that the embryo must be placed in the mother at a time when treatment services are being provided for the woman and the man together.
Discussion and analysis
The second point of law: have the remaining embryos in Mrs. Hadley's case been "used" in the provision of treatment services, so that Mr. Hadley's consent to their use cannot be varied or withdrawn?
(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.
Discussion and analysis
(i) the fertilisation in vitro of a number of eggs taken from Mrs Hashmi with sperm taken from her husband to form embryos;
(ii) the removal from the developing embryo of a single cell by a biopsy;
(ii) the examination of that cell using molecular genetics to see whether the embryo carried the beta thalassaemia disease. This process is commonly described as PGD
(iv) use simultaneously of the same process to identify whether the embryo had the same tissue type. Because this process involves examination of proteins known as human leukocyte antigens (HLA), the form of PGD is described as "HLA typing". I shall refer to it by the more popular phrase of "tissue typing".
(v) jettison of embryos found by this analysis to be either disease bearing or of a different HLA type to Zain and the implantation in the womb of Mrs. Hashmi of an embryo shown to be disease free and of the same HLA as Zain.
The Claims under the Human Rights Act 1998
1. Would it be unlawful in terms of the Convention for the Court to bar implantation and/or continued storage of the embryos?
2. If it would, does the Act require that the Court bar implantation and/or storage; or can the Act be read and given effect to in a way which is compatible with the Convention (HRA98, section 3(1) and 6(2))?
Article 2: the Right to Life
(Counsel for the local authority) also sought to rely on article 2 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms: "Everyone's right to life shall be protected by law". However, in Paton v United Kingdom (1980) 3 EHRR 408, on a complaint by the unsuccessful plaintiff in Paton v BPAS Trustees (above), the European Commission of Human Rights ruled (in para 8 of their decision at p 413) that on its true construction article 2 is apt only to apply to persons already born and cannot apply to a foetus. They continued (at p 415):
The `life' of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If article 2 were held to cover the foetus and its protection under this article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the `unborn life' of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The `right to life' of a person already born would thus be considered as subject not only to the express limitations mentioned in para. 8 above but also to a further, implied, limitation."
Thus, far from assisting (counsel's) submission, article 2 of the Convention, as interpreted by the European Commission, is in my judgment against him.
The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death… The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation."
We respectfully agree with Balcombe LJ in Re F (In Utero) who also considered the possibility of the Court being asked to order delivery of the baby by caesarean section. He said  Fam 122, 144:
'If Parliament were to think it appropriate that a pregnant woman should be subject to controls for the benefit of her unborn child, then doubtless it will stipulate the circumstances in which such controls may be applied and the safeguards appropriate for mother's protection. In such a sensitive field, affecting as it does the liberty of the individual, it is not for the judiciary to extend the law'.
Article 8: The right to respect for private and family life
Is Article 8 engaged?
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Is there an interference with the right to respect for private life in this case?
The evidence filed on behalf of the Secretary of State
(1) the female right of self-determination in relation to a pregnancy;
(2) the primacy of consent accorded in the modern age to the need for freely given and informed consent to medical interventions;
(3) the period over which IVF takes place;
(4) the special significance of parenthood;
(5) the interests of the child;
(6) equality of treatment between the parties;
(7) the promotion of the efficacy and use of IVF and related techniques; and
(8) clarity and certainty in the relations between partners..
Once it was decided in principle that it would be appropriate to legislate in this field, and to enshrine within legislation the principle of consent to treatment services, it was, in the Secretary of State's view, entirely legitimate, and consistent with the underlying objective, to favour clear or "bright line" rules which serve to produce certainty in all cases, and do not depend upon the circumstances of individual cases. Therefore, it was considered appropriate to permit male partners to withdraw their consent to treatment services prior to the use of an embryo in all cases, rather than to make that permission dependent upon the facts of the individual case: the circumstances, financial and otherwise, of the male, and of his partner or ex-partner, whether she was already a mother, whether she would be able to have recourse to IVF in the future, etc. A fact-sensitive rule would, in this situation, give rise only to uncertainty and to litigation. The fact that the present cases are perhaps the first major example of litigation between parties to IVF treatment (in contrast to the US, where there are several examples) demonstrates the success of the Act in regulating this very sensitive area. The position of the claimants is undoubtedly deserving of sympathy, but the consequences of Schedule 3 in an individual case cannot, in the Secretary of State's view, negate the legitimacy and the legality of the policy of adopting clear rules which can govern all cases.
The case for Ms Evans and Mrs. Hadley under Article 8
The argument for the Secretary of State
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the 'discretionary area of judgment'. It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.
(1) It is within the area of social policy (see also Greenfield v Irwin  1 WLR 1279, paragraph 36: where there is a wide margin of discretion for the state in the area of family life).
(2) The issue of consent requires a balance to be struck between competing rights and interests (and see Chassagnou v France (1999) 29 EHRR 615, paragraphs 112-113, where the Strasbourg Court held that the margin of appreciation would be particularly broad where it was necessary to strike a balance between competing Convention rights – here the rights of the women and of their respective former partners).
(3) A high degree of respect is to be accorded to the balance struck by the Act precisely because it is embodied in an Act of Parliament, passed by the democratic legislature (as compared with, say, an act of administrative discretion): see R v Lychniak  3 WLR 1842, at paragraph 14.
(4) A further factor which militates in favour of a particularly broad margin of discretion in this case is that there is no European consensus in favour of the position advocated by the claimants (and therefore, it is more difficult for them to say that the approach of the Act is not "necessary"). Indeed, the position is to the contrary: to the extent that there is consensus, it is strongly against the idea that an embryo should be available for the use of a female participant in IVF treatment in circumstances where her former partner, whose gametes were used in the creation of the embryo, does not consent.. It is well-established that the Strasbourg Court will have regard to the existence or otherwise of a consensus amongst Contracting States when determining the breadth of the margin of appreciation in a particular case: see Rasmussen v Denmark (1984) 7 EHRR 371, paragraph 40; and Petrovic v Austria (1998) 33 EHRR 307, at paragraphs 38-43.
The case for Mr. Johnston and Mr. Hadley on Article 8
Conclusions on Article 8
Article 12: The right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14: Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
In the leading judgment in Michalak v London Borough of Wandsworth  4 All ER 1136, Brooke LJ recommended the following structured approach to consideration of an Article 14 claim. The court should ask, sequentially, four questions. If any one is answered in the negative it will normally follow that the claim is ill-founded. The questions are:
"(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see Human Rights Act 1998, section 1(1))?
(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other?
(iii) Were the chosen comparators in an analogous situation to the complainant's situation?
(iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?"
We agree with Brooke LJ that this structured approach is helpful.
Conclusions under HRA 1998 and the Convention
Can an estoppel exist in the face of the Act?
The general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it.
Whether the law that confronts an estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public
The ingredients and parameters of promissory estoppel
 It cannot be doubted that in this as in every other area of the law, the court must take a principled approach, and cannot exercise a completely unfettered discretion according to the individual judge's notion of what is fair in any particular case. Dr Gardner's fourth hypothesis ('the approach is for the court to adopt whatever style and measure of relief it thinks fit, for whatever reason it thinks fit') cannot be right……
 The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search, because (as appears from both the English and the Australian authorities) proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurances which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements, in combination, make it unconscionable for the person giving the assurances (whom I will call the benefactor, although that may not always be an appropriate label) to go back on them.
It was not argued at your Lordships' Bar, and it could not be argued, that there was any right of a Court of Equity, or any practice of a Court of Equity, to give relief in cases of this kind, by way of mercy, or by way merely of saving property from forfeiture, but it is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture - afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.
In none of these cases was the defendant sued on the promise, assurance, or assertion as a cause of action in itself. He was sued for some other cause, for example, a pension or a breach of contract, or possession, and the promise, assurance, or assertion only played a supplementary role, though, no doubt, an important one. That is, I think, its true function. It may be part of a cause of action, but not a cause of action in itself. The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.
Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind. Its ill effects have been largely mitigated of late, but it still remains a cardinal necessity of the formation of a contract, although not of its modification or discharge. I fear that it was my failure to make this clear in Central London Property Trust Ltd v High Trees House Ltd which misled Byrne J in the present case. He held that the wife could sue on the husband's promise as a separate and independent cause of action by itself, although, as he held, there was no consideration for it. That is not correct. The wife can only enforce the promise if there was consideration for it. That is, therefore, the real question in the case: Was there sufficient consideration to support the promise?
Application of the principles of estoppel to the present case
Information from other jurisdictions
Mr Justice Wall :
Evans v Amicus Healthcare Ltd and Johnston
Hadley v Midland Fertility Services Limited & Hadley,
The Secretary of State for Health and the Human Fertilisation and Embryology Authority being parties to both claims
Press release by Mr. Justice Wall
1 October 2003
The judgment which I am handing down in open court this morning is a public document. However, it is extremely long, and deals with some difficult points of law. Because of the media interest in these two cases, I am taking the unusual step of publishing a summary of my reasons for reaching my conclusion that the claims of both Ms. Evans and Mrs. Hadley must be dismissed. That summary accompanies this press release and may be read as part of my judgment.
Summary of the judgment of Mr. Justice Wall in the case of Evans v Amicus Healthcare Ltd and Johnston and Hadley v Midland Fertility Services Limited & Hadley, the Secretary of State for Health and the Human Fertilisation and Embryology Authority being parties to both claims
The issues in the case
The reasons the claims fail
The men's original consents to treatment are no longer effective (paragraphs 104 to 149 of the judgment)
The men have an unconditional statutory right to withdraw or vary consent
The embryos have not been used (judgment paragraphs 150 to 165)
The Act does not breach Convention Rights (judgment paragraphs 166 to 278)
The concept of Promissory Estoppel does not apply (judgment paragraphs 279 to 311)
23 Other factors necessary for the existence of a promissory estoppel, which I identify in the body of the judgment (paragraphs 298 to 311) are also missing.