High Court

Lawyers for the two women submitted to the High Court of Justice in September 2002 that, as treatment was already under way, the men should not have the right to stop it. The women used the analogy that if they got pregnant naturally and the embryos were in their bodies, then their partners would have no say at all.^[5] In September 2002, Elizabeth Butler-Sloss, Baroness Butler-Sloss the president of the High Court's Family Division, said that a full hearing would be scheduled for the New Year, later confirmed as 30 June 2003.^[6]

On 1 October 2003 Mr Justice Wall said that in ruling against the women, although he had sympathy for the women's situation, he could not overrule the law as it stood. He said it was up to Parliament, rather than the High Court, to decide whether the law in this area needed to be changed. The High Court ruled the embryos of both women should be destroyed, but that would not happen until the conclusion of the appeals process. The women could appeal to the Court of Appeal or on to the European Courts. The main secondary outcome of the ruling was that the judge ruled that fertility clinics would now have to counsel couples having IVF to consider carefully what would happen to any embryos that were created if they split up.^[7]

James Grigg, solicitor for Howard Johnston, said: "Mr Johnston firmly believes that this outcome could be the only one, given the circumstances. With the conclusion of his relationship with Ms Evans, he would not now elect to start a family with her. If a child had been born, Mr Johnston would have legal, financial, emotional and moral responsibility for it. Mr Johnston hopes that Ms Evans wish to start a family can be satisfied in some other way, perhaps using donor eggs." After offering to donate the embryos to infertile couples,^[8] on 24 October 2003 Mrs Hadley told the BBC Midlands Today regional news program that she was giving up her fight in light of the unlikely scenario that her ex-husband would provide consent to her using the embryos, and the withdrawal of legal aid.^[9]

House of Lords

On 29 November 2004 three Law Lords dismissed Evans's application for leave to the House of Lords on the grounds that the petition "did not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the cause has already been the subject of judicial determination".^[10] Ms Evans still had the right to file a complaint to the European Court of Human Rights (ECHR) in Strasbourg.

European Court of Human Rights

On 26 January 2005 the Bath clinic informed Evans that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005. Although now outside the statutory five year legal limit for the retention before use of embryos, on 27 February 2005 the ECHR, to whom Evans had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.

On 7 March 2006 a panel of seven judges of the ECHR delivered a majority 5–2 ruling against Ms Evans, which read: "The Court, like the national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child."^[11][12] However, the panel majority found that, even in such exceptional circumstances as Ms Evans', the right to a family life – enshrined in article eight of the European Convention of Human Rights – could not override Johnston's withdrawal of consent. The panel also ruled, this time unanimously, that the issue of when the right to life begins "comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere", and thus rejected the claim that embryo's right to life was being threatened.^[13][14]

Michael Wilks, of the British Medical Association ethics committee, said: "It's the right verdict, but a terrible situation." Dr Wilks called for a change to the five year limit for embryos to be stored after one partner withdraws consent should be extended so there was less of a "ticking clock". Ms Evans decided to appeal to the Grand Chamber of the European Court, but commented that she still wanted her ex-fiancé to change his mind to allow the embryos to be used.^[13]

On 10 April 2007 the Grand Chamber of the ECHR ruled against Evans' appeal under three articles of the European Convention of Human Rights, which represented her last chance to save the embryos. The court ruled unanimously that there had been no breach of the right to life; but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to 4 (Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele dissented the judgment).^[15] Dr Allan Pacey, secretary of the British Fertility Society, said: "I think it was the only sensible decision which the Grand Chamber could come to. UK law is clear. It is a principle of shared responsibility."^[2]