On 3rd October 2003 Lorraine Hadley and Natallie Evans lost a High Court bid to become pregnant using frozen embryos after their former partners withdrew consent. Mr Justice Wall decided that the men, Howard Johnston and Wayne Hadley, had rights in this case that cannot be overturned. He didn’t really have a terribly hard decision to make as far as the law goes since the relevant law in this instance – the Human Fertilisation and Embryology Act 1990 – explicitly states that unless both parties consent to each stage of IVF treatment it will not proceed and the embryos will be destroyed. After having their appeal case thrown out one of the women, Natallie Evans, went to the European Court of Human Rights and on Tuesday 07th March 2006 her appeal was defeated.

The case appears to me to be fairly clear cut, but it seems that not everyone thinks so. There are some otherwise intelligent people who believe that Natellie Evans should have been allowed to use the embryos to have a child, especially since she is now infertile after having cancer treatment and has no other chance to have a child of her own.

When the couple went for IVF treatment they signed an agreement requiring each others consent for the continuation of the treatment. Shortly after they had the embryos created their relationship went tits-up and thus, given the very different situation, isn’t it understandable why at least one party didn’t want to treatment to go any further? The couple were told of the law which governs what happens to embryos in storage, so neither could plead ignorance of the situation. The courts have come to the only possible rational decision that could have been made under current law, a law which is itself a fairly sensible one. If the courts had arrived at any other decision, they would have negated the rights of male partners, which would have been an extremely dangerous precedent to set, as would changing the rules retrospectively. The parties gave their consent on the basis that it could be withdrawn or varied at any time up until the embryos were used in treatment. The principle of valid consent is an important one that must be upheld. No?

This highly publicised case has lead to a flood of debate and argument. So far there are three major arguments employed by those who think the courts made the wrong decision. Two of these arguments are serious issues that need to be addressed, while the other is little more than a piece of ad hominem.

Allow me to dispel the latter of these arguments first. It has been voiced from some sources that the men in this case were stopping these women from having children simply due to bitterness. Baroness Mary Warnock, who chaired the 1984 inquiry that led to the 1990 Human Fertilisation and Embryology Act, said “I would. . .have liked to know what the potential father’s motivation was in bringing this case. The decision to block the two women from having babies does seem somewhat spiteful.”

First of all, it wasn’t the men who brought the case – it was their ex-partners. Second of all, There is no way to get inside the heads of either man in an effort to find out what his “real” intentions were in refusing consent after a break-up. However, it’s quite unfair to jump to the conclusion that the men were simply being bitter. They didn’t want to have a biological child with a woman they had split up with. Sounds like a fairly rational position to me. In any event, even if they were just being bitter that is entirely their prerogative. They are not committing any crime by refusing consent due to post-break-up bitterness. The legal or moral validity of their decision to withdraw consent does not hang on the reason for their withdrawal of consent. The issue of why they withdrew consent is of no legal or moral relevance whatsoever and has no bearing on the rightness or wrongness of the judicial decision to respect their withdrawal of consent under a mutual agreement in this case.

Why would Baroness Warnock suspect that the men were being spiteful? Well, in her words because, “they were told they would not have anything to do with these children. I can’t see why they wanted to stop it happening.” You silly old twit! Do you think that a man could simply live happily in the knowledge that somewhere out there he has a child that he has no responsibility for? Do you suppose men are so cold and incapable of emotional attachment? Having a biological child out there in the world wouldn’t bother them as long as they have no legal or financial responsibility for it? Ms Warnock obvious hasn’t got a terribly high opinion of the human male, eh? Doing what Ms Warnock suggests would by no means be easy. Does not the fact that the man knows he has a child involve him right from the start? It is also highly likely that later in life the child will want to learn where it came from, and who its biological father is. The connection between the father and the child will be present in some form whether or not the father has any legal or financial responsibility for the child. Could a mother simply forget her child in the way that Baroness Warnock expects the men in this case to do? It is dangerous to try to ignore the strength of biological bonds and unrealistic, even naïve, to expect men to be able to live like nothing really happened. To suggest that this wouldn’t have a massive impact on a man is a gross falsehood. Us men are more than mere sperm donors, Ms Warnock.

I will look now at two ethical arguments concerning this case.

The first of the ethical arguments concerns the right to have a child. Baroness Warnock hints at this when she says, “I think [The 1990 law] is hard on women. For the two women in [this] case, it appears that this was their only chance of having children, so I think it is hard to deprive them of that.” For some reason there are those who think that a woman has a right to have children and that the decision of the courts in this case upheld a “male veto” to that right. But this is not true. It is little more than a fabrication to say that women have a right to have children, even if they cannot conceive naturally, and even if the father does not want to have a child. Lets imagine a scenario in which a woman has just her eggs frozen. She now decides she wants to have a baby, but no sperm donor will come forward. Does she have a right to have her eggs fertilized? Should some random man be compelled to donate his sperm and become a father against his will simply because of some supposed right of a woman to have a child of her own? More importantly, from where does such a right originate? What possible argument is there for something like a “right to give birth?” Does a man also have that right? Isn’t this just another example of modern-day rights language plumbing the depths of absurdity? Even if there was such a right to bring these embryos to full term, there is no reason why this right should be given to the woman alone. If the man in question entered another relationship with an infertile woman there is surely an equally strong case for the embryos to be implanted into that woman. Given that the embryo is in a neutral environment, connected to neither the man nor the woman, and given that both the man and the woman have been equally involved in the creation of the embryo, it would be difficult to make the case that the woman has some privilege here that a man doesn’t.

I wonder what the reaction would be if the case was the other way around. Lets say the man has testicular cancer, undergoes IVF with his partner, and soon after receives treatment for cancer that leaves him infertile. If the couple then separate before implantation would anyone suggest that she shouldn’t be able to withdraw her consent to the later stages of IVF treatment?

The last and best argument to conclude that the wrong decision was made is that in normal pregnancies the man cannot veto a birth. If a couple are in a relationship, are expecting a baby, and then subsequently break up, the man will have no rights whatsoever regarding whether or not the child is born. The woman has absolute rights to decide whether or not to terminate the pregnancy. Why should this case be treated differently?

On the face of it this argument appears to be persuasive, and a number of people have bought into it. However, the argument is flawed by virtue of failing to recognise relevant differences between the two cases. When trying to have a baby a couple will be aware of how the law relates to cases of pregnancy. Both parties enter into an agreement to have a child knowing full well that in the event of pregnancy the woman will have absolute rights to decide whether or not to continue with it. This is the law. It would be practically difficult for this to be any other way, given the complications that arise from the fact that the child is inside the woman’s body. In IVF treatment the situation is different from the outset by virtue of the fact that the embryo is not inside the woman’s body. It is wholly separate from her. But more importantly, in the case of IVF treatment both parties understand that they are entering into a different agreement than is the case with normal pregnancy. From the outset both parties fully understand that for IVF treatment to continue the consent of both parties is required. Both the man and the woman enter the agreement on these terms, and as in the case above both explicitly knew what these terms were. Now, perhaps it could be argued that the woman should have absolute rights in cases of IVF just like she does in normal pregnancy, and thus that the law should be changed. However, no-one has made that case and, frankly, I have no idea what such an argument would look like let alone how it might possibly be rationally successful. In any event such an argument would be very different from saying the courts got the application of the law, as it stands, wrong. The courts applied a good law properly. The courts do not exist to dispense either justice or morality, despite a worrying trend to the contrary, but instead exist to interpret and to apply the law of the country. In this case the issue is not about whether or not the woman should have absolute “rights,” the issue is a simple legal one – she didn’t have such “rights.”

Finally, it would be important to consider the consequences of over-riding the consent clause to allow these women to have the embryos implanted. Consider the effect that such a ruling would have on other couples. It is not unreasonable to posit a drop in the number of men willing to participate in such a procedure, if they are aware that a precedent has been set by which their side of the agreement will be torn up in the event of a relationship breakdown. This in turn would lead to other women being denied the very same “right” that is claimed for women by those commentators who believe the courts should have decided otherwise.

Regardless of what happens to the law, if it is reviewed after this case, we must never allow governments or the courts to tear up contractual agreements between consenting parties. When rational people make an agreement on certain terms how dare anyone blunder into the relationship and dictate to one or both parties what the terms will now be. The only relevant right in such cases is actually the right of the individual to their own life: To make their own private decisions and live with the consequences, free from interference from government or any other moralising busybody. Both parties made a decision and both parties should now live with the consequences of it, however hard they are to bear.

Stephen Graham B.Th (Hons)