A woman hoping to stop the destruction of six embryos created with her eggs and her ex-partner's sperm launched an unprecedented case at the European court of human rights yesterday.
Lawyers for Natallie Evans lodged an application at the Strasbourg court challenging the UK law that requires the frozen embryos to be disposed of, after her former fiance, Howard Johnston, withdrew consent to her using them to try to become pregnant.
The move is the only remaining hope of motherhood for Ms Evans, 33, from Wiltshire, who underwent surgery to remove her ovaries after she was diagnosed with ovarian cancer. She lost her bid to save the embryos in the high court and court of appeal, and the House of Lords refused her permission to appeal.
Ms Evans's lawyers will argue in Strasbourg that the embryos themselves have a right to life under the European convention on human rights.
She also claims that banning her from using the embryos is a breach of her own right to private and family life, guaranteed by the convention; and discriminates against her in comparison to women who can conceive naturally, whose male partners cannot withdraw consent to the birth once the embryo is created.
She faces a high hurdle in persuading the court that an embryo has a right to life under European human rights law.
A grand chamber of the Strasbourg court ruled only last July by a 14-3 majority that the issue of when the right to life begins is a question to be decided at national level. It is well-established under English law that an embryo is not a person and has no right to life. The Strasbourg court refused to rule that a foetus which had been aborted by mistake had a right to life entitled to protection under the convention.
Ms Evans's solicitor, Muiris Lyons, of the London firm Alexander Harris, acknowledged that the earlier case, Vo v France, would create difficulties for her. He said her other arguments, on private life and discrimination, were more significant.
Mr Lyons is asking for the case to be fast-tracked. It will be a race against time because the five-year maximum storage period under the Human Fertilisation and Embryology Act 1990 (HFEA) expires in October 2006.
Even if Ms Evans wins, the Strasbourg court can only declare that UK law breaches the European convention. It would then be for the government to change the law - but that might not happen fast enough to save the embryos.
Mr Lyons said he hoped the government might agree to keep the embryos in store in the meantime.
"The worst-case scenario is if they say, 'Hands up, we've probably got it wrong but the HFEA is under review, we're planning a new act of parliament and we'll deal with it then - but there's nothing we can do about the embryos in the meantime.'"
A Strasbourg case which is not fast-tracked can take three years to reach a final judgment.
Ms Evans underwent IVF treatment in 2001 with her fiance after being diagnosed with ovarian cancer. The resulting six embryos were stored and she had surgery to remove her ovaries.
"I feel that I have to pursue every possible route to save my embryos," she said. "I hoped that I could have done so in the UK, but I now have no other choice but to take my case to Europe."
Mr Lyons added: "If the UK law says that Howard can change his mind at any time, then Natallie feels that the law is unfair and breaches her human rights. It gives a man an absolute veto and effectively discriminates against women who have to undergo IVF treatment because of infertility."
