The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
Article 12 - Right to marry and found a family
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
It has been suggested that Article 12 could be used to challenge decisions not to provide access to fertility treatment although the European Commission has stated that Article 12 does not give individuals an absolute right to be provided with assistance to conceive.
Gavin Mellor was serving a life sentence for murder when he met and married his wife. In 1997 he applied for permission to be allowed to inseminate his wife artificially arguing that Article 12 of the European Convention gave him the right to found a family. The Secretary of State refused the request on the grounds that artificial insemination was not needed for medical reasons but was sought in order to circumvent the normal consequences of imprisonment. Furthermore, he argued that there were serious concerns about the stability of the relationship which had not been tested under normal circumstances.
Mr Justice Forbes held that the Secretary of State's decision did not contravene Mr Mellor's Article 12 rights. It had been clearly established that the Article 12 right to found a family did not mean that a person must be given, at all times, the actual possibility of procreating his descendants. In reality, what Mr Mellor was seeking was to be granted the privilege or benefit of being afforded access to artificial insemination services because an inevitable consequence of his lawful detention in custody was that it was impossible for his wife to conceive a child by natural means. The Secretary of State was therefore entitled to formulate a policy for dealing with such requests by prisoners to decide whether the privilege should be made available in a particular case. The application was dismissed.
(R v Secretary of State for the Home Department, ex parte Gavin Mellor (2000) LTL 4/8/2000)
Article 12 is also relevant to applications to court for the sterilisation of incompetent adults. In Re A (Re A (Male Sterilisation) 2000 1 FLR 549), an application for the sterilisation of a 28-year-old man with Down syndrome was rejected. Reference was made in that case to A's right to privacy and to found a family and it was suggested that the view of A that he did not want the operation ought not to be ignored even though he was unable to understand its implication. In the Court of Appeal, Lady Justice Butler-Sloss warned that with the direct application of the European Convention on Human Rights to English domestic law imminent, the courts should be slow to take any step which might infringe the rights of those unable to speak for themselves.
Article 12 - Summary
It is possible that Article 12 could be used to challenge decisions not to give access to fertility treatment or applications for enforced sterilisation.