Our UK Human Rights Act incorporates Article 8: the right to respect for private and family life.
The protection this affords us is wide ranging and has historically been invoked to cover a myriad of issues – from keeping a family together by preventing deportation, to giving legal recognition to transsexual people in their new gender, to protecting a celebrity from overly prying eyes.
The nebulous concepts of “family” and “privacy” change over time, and therefore interpretation of Article 8 allows the protection to adapt to meet contemporary life.
What Does Article 8 Say?
The article simply says this:
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.
The Meaning of “Family Life” – A Recent Case
The recent case of R (on the application of (1) IM (2) MM) v Human Fertilisation & Embryology Authority (2015) considered a couple’s Human Rights in respect to Article 8.
In this case, the M family (names protected by anonymity) sought to harness the protection of Article 8 in circumstances at the cutting edge of what “family life” means with modern reproductive technology.
AM was a 28-year-old woman who died from bowel cancer in 2011. She was the only child of IM and MM, who sought to fulfil her dying wishes, as they believed them to be.
AM previously had her eggs frozen and stored, unfertilised, to protect them from ongoing cancer treatment. She provided written consent for the storage of the gametes if she died, but had not signed any consent form specifying how they should be used.
Her parents (IM and MM) believed their daughter had definitively expressed her wish that, after death, one or more of the gametes should be fertilised and implanted in her mother, MM, who would give birth to, and raise, the baby.
The rules around human embryos are governed by the Human Fertility and Embryology Authority (HFEA) which licenses and monitors UK fertility clinics and research. The HFEA say that, for the eggs to be used by anyone else, effective consent must be given.
AM’s parents applied for a special direction from HFEA to permit the export of the gametes to a US treatment centre, with the intention that the unfertilised eggs would be implanted into AM’s mother. The authority refused to issue a special direction on the basis that effective consent had not been given. This meant that the eggs could not be exported and, effectively, would not be used in any other way.
The parents challenged the lawfulness of HFEA’s decision on three grounds, one of which argued that the decision was an unjustified interference with their Article 8 rights.
In the High Court, Mr Justice Ouseley described the case as “very sad” and had sympathy with the parents’ attempts to fulfil their deceased’s daughter’s wishes to have her genes survive. However, the application was refused.
The reasons given were that HFEA was entitled to look for evidence of consent of the particular proposed use, but there was insufficient evidence that AM had intended her mother to be her surrogate in these circumstances. The quality of consent was a crucial and necessary part of HFEA’s policy.
As for Human Rights, the court found that AM’s parents did not have any Article 8 right to use the gametes, because they didn’t have sufficient consent to do so. The refusal to allow export was in accordance with law and any interference was justified by the public interests underlying the Human Fertilisation and Embryology Act.
Although the parents of AM were unable to use Article 8 in their intended way, the reasons were very much on the particular facts of this case.
This case demonstrates the wide scope of Article 8, and that family life can emerge from the modern laboratory.
Sarah Jones is a Clinical Negligence and Human Rights Solicitor at Slater and Gordon Lawyers UK.
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