1 App. No. 6339/05 (Eur. Ct. H.R. Apr. 10, 2007). Judgments and other decisions of the Court are available at <http://www.echr.coe.int>.

2 Human Fertilisation and Embryology Act, 1990, c. 37. Under section 12(c) of the act, anyone granted a license either to bring about the creation of an embryo or to keep and use an embryo must comply with its provisions concerning consent to use gametes or embryos: the embryo may be stored only while there is effective consent to its storage by both gamete providers, and either party whose gametes were used to create the embryo may vary or withdraw that consent at any time up to implantation.

3 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5,213 UNTS 222, available at <http://www.echr.coe.int>.

4 Evans v. Amicus Healthcare Ltd., [2005] Fam. 1.

5 Evans v. Amicus Healthcare Ltd., [2004] EWCA 727 (Civ).

6 Evans v. United Kingdom, App. No. 6339/05 (Eur Ct. H.R. Mar. 7, 2006).

7 A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000); J.B. v. M.B. 783 A.2d 707 (N.J. 2001); Kass v. Kass, 696 N.E.2d 174 (N.Y. 1996); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Litowitz v. Litowitz 10 P.3d 1086 (Wash. 2000). These judgments, while applying different reasoning, were all unwilling to force people to parent genetically related children against their will. The same result was generated in a case not mentioned in Evans, In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).

8 CA 2401/95 Nahmani v. Nahmani [1995-96] IsrSC 50(4) 661, available at <http://elyonl.court.gov.il/Files_ENG/95/010/024/zO1/95024010.zO1.HTM>. This case is the only one reported to date in which the woman's interest in pursuing her last chance to become a genetically related mother was recognized as outweighing the man's interest in not being forced to become a father.

9 Universal Declaration on Bioethics and Human Rights, UN Educational, Scientific and Cultural Organization, General Conference, 33d Sess., Oct. 19, 2005, at <http://portal.unesco.org/shs/en/ev.php-URL_ID=1883&URL_DO=DO_TOPIC&URL_SECTION=201.html>; Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Apr. 4,1997, ETS. No. 164, at <http://conventions.coe.int/Treaty/EN/Reports/Html/164.htm>; Council of Europe, Ad Hoc Committee of Experts on Progress in the Biomedical Sciences, Report on Human Artificial Procreation, in 40 Int'l Dig. Health Legis. 907 (1989), available at<http://www.coe.int/t/e/legal_affairs/legal_co-operation/bioethics/texts_and_documents/>. These documents also base the IVF process on joint, informed consent.

10 See Vo v. France, 2004-VIII Eur. Ct. H.R. The “margin of appreciation” is a doctrine of restraint in judicial review at the international level; it reflects the primary role borne by national authorities, including courts, in protecting human rights. See infra text accompanying notes 12, 23-26.

11 The majority further accepted the domestic courts' findings that J's consent was limited to undergoing “treatment together”—that is, he had never consented to the applicant using the jointly created embryos alone (para. 76).

12 See, e.g., Odiévre v. France, 2003-III Eur. Ct H.R. 1 (margin of appreciation wide if state is required to balance between competing private and public interests or Convention rights); Goodwin v. United Kingdom, 2002-VI Eur. Ct. H.R. 1 (margin wider when no consensus within member states of Council of Europe, particularly where case raises sensitive moral issues); Pretty v. United Kingdom, 2002-III Eur. Ct. H.R. 155 (margin restricted when an especially important facet of an individual's existence or identity is at stake).

13 The dissent stated (para. 13):

14 As part of this discussion, the Court cites such cases as Pretty and Odiévre.

15 Jacco, Bomhoff & Lorenzo, Zucca, The Tragedy of Ms. Evans: Conflicts and Incommensurability of Rights, Evans v. the United Kingdom, Fourth Section Judgment of 7 March 2006, Application No. 6339/05, 2 Eur. Const. L. Rev. 424, 431-40 (2006)Google Scholar.

16 Such a discussion occurred in CA 2401/95 Nahmani v. Nahmani [1995-96] IsrSC 50(4) 661, where ten of the eleven justices devoted substantial segments of their separate opinions to the relationship between law and justice. Some of them went as far as to base their entire opinions on justice as distinct from law, in view of their determination that the case arose in a “legal vacuum.” See generally David, Heyd, [Just Law and Moral Justice—Another Look at the Nahmani Affair], 29 Mlshpatim 507 (1998)Google Scholar.

17 As the Court put it, “The Grand Chamber agrees with the Chamber that ‘private life,' which is a broad term encompassing, inter alia, aspects of an individual's physical and social identity including the right to personal autonomy … incorporates the right to respect for both the decisions to become and not to become a parent” (para. 71). For a more recent formulation, see Dickson v. United Kingdom, App. No. 44362/04, para. 66 (Eur. Ct. H.R. Dec. 4, 2007).

18 See, e.g., Daphne, Barak-Erez & Ron, Shapira, The Delusion of Symmetric Rights, 19 Oxford J. Legal Stud. 297 (1999)Google Scholar.

19 Nahmani, para. 2 (Barak J., dissenting).

20 It is instructive to note that the vast majority of the U.S. cases that the ECHR cites for comparative purposes, see supra note 7, as well as many of the judges in the Israeli Nahmani case, while initially formulating the disputes as involving conflicts within the human rights paradigm, eventually decided them by applying private law doctrines. See Jessica, Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses, 40 Wake Forest L. Rev. 159 (2005)Google Scholar; Sara, D. Peterson, Dealing with Cryopreserved Embryos upon Divorce: A Contractual Approach Aimed at Preserving Party Expectations, 50 UCLA L. Rev. 1065 (2003)Google Scholar.

21 As detailed in the first part of this comment, the Grand Chamber employed a methodology of balancing human rights in order to determine whether the 1990 Act had struck a fair balance between private and public considerations, but not in order to decide between die conflicting human rights that it identified at the outset of die judgment—that is, die different gamete donors' rights to respect for their respective decisions to be, and not to be, parents.

22 The ECHR's case law on Article 8 is vast, covering the whole gamut from privacy in a strict sense (involving issues such as registration of personal data, access to data, and disclosure of confidential information) to matters involving personal choice (such as sexuality, abortion, transsexuality, physical integrity, and the choice to die). For a comprehensive review see Aalt, Willem Heringa &c Leo, Zwaak, Right to Respect for Privacy (Article 8) , in Google Scholar Theory and Practice of The European Convention on Human Rights 663 (Pieter van, Dijk et al. eds., 4th ed. 2006)Google Scholar.

23 See Ronald, Dworkin, Taking Rights Seriously (1977)Google Scholar.

24 See, e.g., Martti, Koskenniemi, The Pull of the Mainstream, 88 Mich. L. Rev. 1946, 1962 (1990)Google Scholar.

25 See, e.g., Douglas, Lee Donoho, Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, 15 Emory Int'l L. Rev. 391 (2001)Google Scholar.

26 See, e.g., Goodwin v. United Kingdom, 2002-VI Eur. Ct. H.R.; Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976). For further discussion see, for example, Jeffrey, A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law, 11 Colum. J. Eur. L. 113, 145 (2005)Google Scholar.

27 Articles 49 to 55 of the Treaty Establishing the European Community (consolidated version), 2002 O.J. (C 325) 33, provide that a citizen of the European Community has the right to receive treatment and services in other EC member states. On the basis of these provisions, the British Court of Appeal permitted Diane Blood, a British citizen, to transport sperm extracted from her comatose husband, who died without regaining consciousness, to a fertility clinic in Belgium. It was necessary for her to transport the sperm precisely because she could not be treated with it in the United Kingdom, in view of the 1990 Act's requirement of written informed consent by the gamete donor. Ex parte Blood, [1999] Fam. 151 (Eng.); see R ex rel. Quintavalle v. Human Fertilisation & Embryology Audi., 2 W.L.R. 692 (C.A. 2003).

28 See June, Carbone & Paige, Gottheim, Markets, Subsidies, Regulation and Trust: Building Ethical Understandings into the Market for Fertility Services, 9 J. Gender Race & Just. 509 (2006)Google Scholar.