Sadly, there is no human right to be happy
The case of the British woman denied the right to use her frozen embryos is a cautionary tale of our times.
It is coming to something when judges in Strasbourg have the power to rule on whether or not a woman from Wiltshire can have a baby.
Most commentators seem to agree that the European Court of Human Rights (ECHR) was correct to rule that the British woman, Natallie Evans, could not use her frozen fertilised embryos to get pregnant without the consent of her ex-partner. But there are bigger questions to be asked about the human rights culture that brought such a sad case to court in the first place, and put those judges in a position to make her pregnant or not.
Evans embarked on IVF treatment in 2001 after she was diagnosed with ovarian cancer. Embryos fertilised by her partner, Howard Johnston, were frozen to protect them during her cancer treatment. But after their relationship broke down, Johnston withdrew consent for her to use the embryos.
Evans has since pursued her legal battle to get pregnant, first through the UK legal system and then the European courts. Throughout, it appeared clear to many that she had little chance of winning. The law covering IVF in the UK is explicit on the principle of shared responsibility for the embryos and the need for both parties to consent to treatment. But the UK Human Rights Act (HRA), and the European Convention on which it is based, allowed the lawyers to drag out what must have been a traumatic process for both Evans and Johnston for five years.
Evans claimed that the law’s insistence on consent – of which she had been clear from the start – constituted an infringement of her human right to a family life, as established by the HRA. The ECHR’s final judgement this week tried to put the case in the tortuous language of balancing human rights. ‘We did not consider’, the judges wrote, ‘that the applicant’s right to respect for the decision to become a parent should be accorded greater weight than [Johnston’s] right to respect for his decision not to have a genetically-related child with her.’
Evans’ response was in a similar vein: ‘Whilst a lot has been said about the rights of Mr Johnston, what I was fighting for was my right to be a mother and the rights of the embryos.’
The right to respect, the right to be a mother, the rights of embryos? This is where we have ended up today, when it seems as if any notion can be legitimised by being cast in the magic language of human rights.
It is worth recalling that, when the HRA 1998 was first introduced by New Labour with cross-party support, there was much high-minded talk about how the grand moral sweep of the new law would make Britain a better place. Ministers claimed that it would enshrine the general principles of equality by helping to create a ‘universal human rights culture’. One of the authors of the legislation wrote a book describing the Act as nothing less than a code of ‘Values for a Godless Age’, a sort of ersatz set of moral commandments.
In practice, however, the HRA has turned into something very different – a kind of ‘I’m Always Right Act’ that has done much to cement the ‘me, me, me’ culture. It has often seemed that any personal complaint can assume the authority of universal values by being couched in the language of human rights law. By the same token, people can appeal to the courts to trample on laws, conventions or principles that have served society as a whole perfectly well by demanding their supposed human rights.
Thus one woman’s claim that the break-up of her relationship effectively infringed her human right to get pregnant could call into question the principle of consent – a legal bedrock of the infertility treatment system in the UK and elsewhere. That the Euro-judges rejected her appeal should not distract from the potentially dangerous consequences of this state of affairs.
And nor has the impact of the human rights culture on infertility treatment always been so benevolent. The UK authorities’ insistence on upholding the ‘right’ of children born by IVF to know the identity of their biological father, even if he was simply a sperm donor at a clinic, has led to a predictable collapse in the numbers of such volunteers.
The harsh fact is that nobody can be granted the human right to have a baby or a family life. Nobody can be guaranteed the human right not to be unhappy. Of course it is sad if women who want to have children cannot do so. But it is not the job of the courts to make their personal wishes come true or their private life more fulfilled.
The end result of this legal fetish, of course, is that it is not really the individual complainants who are empowered, but the judges. They are granted the authority to act as a cross between King Solomon and Jeremy Kyle, meddling in people’s private affairs in the name of human rights. That is as inhuman as it is wrong.
Who really wins (apart from the lawyers) in a case like that of Natallie Evans? It is a stark warning of the destructive consequences of making society’s laws on the basis of it’s-all-about-me. And at a time when ‘the politics of happiness’ is becoming a big issue in the UK, it should remind us all of what can happen when private lives and emotions are turned into the stuff of public debate and policy.
One ‘universal value’ that is worth fighting for is liberty – from the tyranny of the courts as much as any other. The American revolutionaries, founding fathers of the fight for individual freedom, promised their people only the right to life, liberty and the pursuit of happiness . The success or otherwise of that pursuit is a matter of common human endeavour. It cannot be assured to any aggrieved individual by calling on God, or His modern substitute, the Human Rights Act.
Mick Hume is editor-at-large of spiked.