Law and justice and whether they are the same thing.

In 2001, Natallie Evans and her then partner, Howard Johnston, began IVF treatment. Later that same year, Miss Evans was diagnosed with ovarian cancer and six of her fertilised eggs were frozen in storage whilst she underwent treatment for her illness. At some point thereafter, following the end of the relationship, Mr. Johnston withdrew his consent to implantation. Since then, Miss Evans has been fighting for her last remaining chance to become a mother. Today, in the Grand Chamber of the European Court, that fight was lost.

The legal position in the UK is unambiguously clear: in the case of in vitro fertilisation, either party has the right to withdraw consent up to implantation. Today’s decision at the European court dealt with question of whether non-implantation represented a breach of the right to life for the embryos. I’m not an expert on human rights legislation, but I’m wholly unsurprised they ruled this was not so. Like the domestic judgments passed previously, I’m quite certain today’s ruling is legally correct. But is it just?

Following last year’s European Court of Human Rights decision that again found against Miss Evans, we had one of our better discussions on this blog. Forgive me, but I intend to rehash some of my own arguments from last year. Note, although I make specific reference to the Evans-Johnston case for obvious reasons, my points are general and should not be read as a commentary on the character of Evans or, more importantly, Johnston, neither of whom I know.

So, as before, I fully comprehend the legal position today, but I don’t believe there is a compelling reason why the law should be crafted the way it is. A man’s right to withhold his consent to becoming a father ought to finish when he fertilises the egg. Where that egg happens to be at the time has zero relevancy so far as I can see.

If someone can provide a reason why fertilisation outside the body should be governed by a completely different set of laws and/or ethics than those that govern in vivo fertilisation, I’d love to hear it.

Here’s the paradox:

A man and a woman get pissed at an office party and go home for a night of passion. She falls pregnant. Albeit the sex was consensual, there is no consent to fathering a child. At the outer reaches of moral reasoning, the man is passively consenting to fatherhood given his participation in unprotected sex. The fact remains that if the woman decides to go through with the pregnancy, there’s not a damn thing the man can do about it. Which is exactly as it should be. The result is a man effectively forced into fatherhood, a state of affairs underwritten by the law.

Another couple who cannot have a baby naturally seek fertility treatment and all the pieces of paper are signed that eventually lead to a man fertilizing an egg outside the womb. At the very least, the man is implicitly consenting to fatherhood (I would argue, given the hours of counseling and procedural nature of the exercise that provides ample opportunity for either party to change their mind at any time prior to fertilisation, the consent is explicit.) Despite willingly giving this consent, the man is afforded later opportunities to renege.

So in one set of circumstances, a non-consenting male is forced into fatherhood; in another circumstance, a consenting male is given the chance to avoid the consequences of his freely given consent.

Men participating in fertility treatment with their partners who anticipate the possibility that they may, at a later date, prefer not to become a father, should keep their sperm to themselves. There are – or ought to be – consequences for certain actions. Whether we’re talking about marriage, getting a joint mortgage or planning a family, people are forever making decisions in the here and now that they may very well regret at a later date. You cannot be insulated against this in ‘real’ life and nor should we be – we are all adults with free will.

I’m convinced that part of the problem with current legislation is the prescribed 5 year period within which fertilized eggs must be either implanted or destroyed. This window effectively invites the potential for one or both parties to change their minds about having a child. I wonder how many in vitro fertilised eggs are destroyed each year by couples who have a change of heart? I should like to see the 5 year window slashed to a 1 year maximum. This would have the effect of concentrating minds, as it were, because the last time I checked, men are not pinned down and forced to ejaculate into test-tubes and consent forms are not signed under duress. There is no man alive in Britain today who is not possessed of the right to avoid fatherhood if he so chooses. However, there is a responsibility to bear the consequences of your actions, including where you have willingly supplied sperm for the purpose of fertilising an egg.

I’m looking for some legal consistency because I don’t buy the notion that differences in the mechanics of egg fertilisation should mean special dispensation using one technique but not another. In the case of IVF there is, if anything, even less reason to allow men to avoid the consequences of their actions. The one-night-stand, drunken shag excuse just doesn’t apply.

The law has to step in when consent breaks down, whether we’re talking about natural conception or IVF. If you believe, as I do, that in vitro fertilisation is the equivalent of intercourse in the natural world, then logic and consistency dictate that the man should have no retroactive right to withdraw consent after the fact. If you believe that implantation of the embryo is the equivalent of intercourse, I can at least understand why some people would argue the man has the right to withdraw consent at any time up to this point. My problem here would be the equivalence of implantation – rather than in vitro fertilisation – with intercourse.

IVF is nothing more than a means to an end. Its purpose is to facilitate fertilisation of eggs where this would not be possible – or extremely unlikely – using natural processes. Dissenters may ask: “Why deny the right to withdraw consent in the case of in vitro fertilisation simply because it isn’t available in natural conception?” I say it should be denied specifically because it is not available during the natural process. The fact it is possible to accommodate a man’s change of mind is simply a bi-product of the time it takes for the IVF process to run its course. You don’t permit couples to select sex (except in very rare circumstances as I understand it) or hair or eye colour even though modern techniques make this possible. We deny these rights because the intention is, or should be, to mirror the natural process in every possible way. To do anything other introduces ethical considerations and moral dilemmas that would otherwise not exist, and which lead to the kinds of mess we’ve witnessed with Evans and Johnston.

The availability of IVF should not be viewed as an opportunity to introduce other dynamics into the reproduction process over and above those required to facilitate the clinical effort to assist a couple in their endeavour to have a child. And the woman should not be forced to sacrifice her right to bodily integrity because the embryos are temporarily – and for medical reason only – sitting in a deep freeze and not her womb.

Whose embryos are they anyway?