Posted by ccld201
16 January 2026The case of Evans v UK (2007)sheds light on a crucial aspect of human reproduction and updates the foundational commitment of the UDHR that ‘all human beings are born free and equal in dignity and in rights’ (emphasis added). This post argues that human dignity is the foundation of consent to assisted procreation, but the ECtHR failed to elaborate on the intrinsic relationship between reproductive rights and dignity, i.e. bodily autonomy and the right to decide our own ends.. Evans v UK was a missed opportunity to entrench human dignity as the very essence of reproductive rights under Article 8 ECHR.
Can We Change Our Mind After Freezing Embryos? Consent, Autonomy, and Parenthood
Evans began when E sought permission to use the embryos she and her partner at the time (J) had created and stored together, as permitted under the UK’s Human Fertilisation and Embryology Act 1990 (HFEA). Following a breakdown in their relationship, J withdrew his consent for the embryos to be used. This change of heart was, and continues to be, permitted under the “consent to use” provision of the Act’s Schedule 3. The clinic was thus obliged to notify E, and to destroy the embryos. In an attempt to salvage her last chance at biological motherhood, E sought permission to use the embryos despite J changing his mind. She argued that the right to withdraw consent until “use”, as set out in the HFEA, breached her rights under Articles 2 (right to life), 8 (right to private and family life) and 14 (protection from discrimination) of the ECHR.
In the UK, after interesting ethico-legal arguments surrounding the wording of the Act, the meaning of “treatment together”, and the interpretation of “consent” and “use” under Schedule 3, E’s claim failed at all levels. Her claim was dismissed by the trial judge[1] and the Court of Appeal,[2] and permission to appeal was refused by the House of Lords.
E then sought remedy before the ECtHR, but the Grand Chamber, too, found there had been no violation of her rights. In brief, Article 2 was deemed not engaged since an embryo is not a legal person in the UK, and the ECtHR also confirmed there was no obligation for an embryo to be recognised as a human life by the UK.[3] The crux of the human rights arguments thus revolved around how the “pillar”[4] of consent in the HFEA’s Schedule 3 interacted with Article 8. Ultimately, Evans v UK confirmed the UK’s position: the principle of autonomy underpins the choice to consent to, or refuse, fertility treatment and by association, parenthood.
A Missed Opportunity for Human Dignity
Both the UK courts and the ECtHR’s judgments evaluated E and J’s competing interests of reproductive rights, consent, and bodily autonomy. Despite fertility treatment being intrinsically linked to human life, human dignity is not explicitly entrenched within the ECtHR’s rationale. The ECtHR evoke dignity at an arm’s length when considering the UK Court of Appeal’s judgment,[5] and exploring the UK’s policy justifications for the HFEA.[6] As argued here, human dignity is the unstated reason why J’s consent, or lack thereof, was repeatedly the winning argument. The limited scope in which human dignity was evoked can explain the continuing ethico-legal debates sparked by these cases regarding the consent “pillar” of the HFEA. Had human dignity been explicitly explored and used to support the ECtHR’s judgment, the wider structure of reproductive rights and the right to family life under Article 8 would now be clearer and more predictable, for men and women alike. Nonetheless, key dimensions of human dignity can be extracted from these judgments.
In the Court of Appeal, Lady Justice Arden’s judgement sets out dignity as the blueprint for the consent provision of the HFEA and our rights under Article 8 by stating that private life ‘is an aspect of the principle of self-determination or personal autonomy’. The Court of Appeal acknowledges that consent, including the right to withdraw consent, is the crucial safeguard which guarantees that each party’s dignity is protected. This Kantian right to control one’s own ends, in the genetic and reproductive sense, underpins our Article 8 right, and thus the justification for the HFEA’s consent provision. Dignity validates why, even in the face of such tremendous possible loss, E’s right to genetic parenthood could never justify ignoring J’s withdrawal of consent. Dignity was the reason the promissory estoppel argument presented by E could never succeed,[7] and why surrogacy or donor contracts can never be legally binding. Dignity explains why it was, and continues to be, impossible for the embryos to belong solely to E (i.e. to just one parent or donor).
By the time Evans reached the ECtHR, the Grand Chamber was asked to consider whether UK policy (i.e. the HFEA’s Schedule 3) struck a fair balance between competing interests, or whether it disproportionately violated E’s ECHR rights. While E’s claim was ultimately dismissed, there was no substantive reference to human dignity in the rationale. The Grand Chamber cited ‘respect for human dignity and free will’ when approving the UK’s justification for the interference with E’s Article 8 right,[8] therefore implicitly confirming that consent is a matter of dignity. Moreover, by respecting J’s free will and allowing him to revoke his approval, the ECtHR confirmed that continuing consent is essential to upholding the right to self-determination. However, the role of human dignity in this was largely implied, and the ECtHR missed a good opportunity to clarify its commitment to ‘protect human dignity and freedom as the very essence of the Convention’ articulated in 1995.
The ECtHR has already recognised the link between consent to sex and human dignity in the marital rape ruling of S.W. v UK in 1995, whereby a wife’s lack of consent was a violation of her bodily autonomy, contrary to dignity and the “very essence” of the ECHR.[9] In Evans, more explicit considerations of the interaction between human dignity and reproductive rights would have consolidated the argument in favour of consent, autonomy and self-determination. Incorporating human dignity in the Court’s rationale would better explain why J’s autonomy and self-determination were ultimately the winning arguments, even where the stakes were so high and the consequences so devastating for E.
Some may argue that the unequal physical and emotional expenditure of men and women in fertility treatment could justify restricting J’s right to withdraw his consent.[10] However, human dignity reminds us that the rights of men and women alike must be protected. Dignity supports the ECtHR’s conclusion in favour of the strict consent requirement of the HFEA because respect for individual autonomy and self-determination is paramount. Article 8 is not an absolute right, so J’s decision to not be the biological father must be respected, even where it curtails E’s right to biological motherhood. In the broader discussion of democracy and equality, dignity spotlights that men’s reproductive rights, too, are threatened by emerging technologies.
As stated in the 1997 Oviedo Convention, human dignity must serve as the compass to navigate complex bioethics issues. Evans was unfortunately a missed opportunity to entrench dignity as the guiding principle, the lens through which to look, when tackling the difficult ethical questions raised by medically assisted reproduction.
Looking Forward with Dignity
In a time where there are an increasing number of medical and technical ways to intervene in human procreation, human dignity is the foundation on which our democratic requirement of consent, including to procreation, is built. As stated by former president of the ECHR, Linos-Alexandre Sicilianos, ‘dignity is the prism through which all rights are protected’.[11] Should future cases provide the opportunity to consider dignity as the central argument, rather than a satellite point, it is hoped the ECtHR’s rationale will be used to strengthen the commitments made in the Convention by entrenching human dignity as the foundational concept behind consent and our reproductive rights under Article 8 ECHR.
Rachael Wyborn is an Exeter Law School graduate and member of the founding editorial team of the Dignity&Democracy Blog.
[1] Evans v Amicus Healthcare Ltd and Others (Secretary of State for Health Intervening); Hadley v Midland Fertility Services Ltd and Others [2003] EWHC 2161 (Fam)
[2] Evans v Amicus Healthcare Ltd & Ors [2004] EWCA Civ 727
[3] Evans v United Kingdom (6339/05) (2008) 46 EHRR 34 [54]
[4] Evans v Amicus Healthcare Ltd & Ors [2004] EWCA Civ 727 [23]
[5] Evans v United Kingdom (6339/05) (2008) 46 EHRR 34 [26]
[6] Evans v United Kingdom (6339/05) (2008) 46 EHRR 34 [89]
[7] Evans v Amicus Healthcare Ltd & Ors [2004] EWCA Civ 727 [120]
[8] Evans v United Kingdom (6339/05) (2008) 46 EHRR 34 [89]
[9] S.W. v the United Kingdom App no 20166/92) (ECHR 22 November 1995) [44]
[10] Craig Lind, ‘Evans v United Kingdom – Judgments of Solomon: Power, Gender and Procreation’ (2006) 18 Child and Family Law Quarterly 576.
[11] Linos-Alexandre Sicilianos, ‘The European Convention on Human Rights at 70: the dynamic of a unique international instrument’ (Kristiansand, 5 May 2020).