European Court Denies Woman Right To Implant Her Embryos

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The European Court of Human Rights has ruled that an infertile British woman cannot implant frozen embryos produced with the sperm of her former fiance. In 2000, Natalie Evans had her ovaries removed due to a precancerous condition. Beforehand, she produced six eggs which were fertlized with the sperm of her fiance Howard Johnston and then frozen for later implantation. These six embryos are the only way for Evans to have a chance of bearing genetically related children.

Evans and Johnston broke up and Johnston withdrew his consent for implantation. Under British law, both donors must give consent right up to the point of implantation. Johnston says that he does not want to bear the financial and emotional burden of fatherhood. The European Court upheld the British law requiring mutual consent.

There have been similar cases in the United States where courts have generally held that both donors must consent to implantation unless there is a contract specifying otherwise.

The first lesson of such cases is that clear agreements on how embryos will be used are essential before they are created. In this case, the court ruling is legally proper, but nevertheless seems unjust to me. Surely it would be possible for Evans and Johnston to reach an agreement in which he would be legally treated as an anonymous sperm donor from whom Evans would have no right to demand financial or emotional support. If such an agreement is not reached, the embryos will be destroyed in October.

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  1. I agree with the ruling. Imagine if you are the man, and you have since remarried. How would your new family feel about this? In a free society she should have the option to buy him off, but I have a feeling that’s illegal…

    At any rate, there are many children out there waiting for adoption.

  2. An example of why marriage matters? P

    roperty rights don’t seem to work here. A woman’s rights wouldn;t seem to trump a man’s rights. The law is clear, but leaves no one particularly happy.

    I don’t see how the guy could be treated as an anonymous sperm donor since he isn’t, um, anonymous. So maybe these folks are providing an instructive lesson for the rest of us about working on your relationship before working on replicating yourself?

  3. In most U.S. states (perhaps all), any agreement not to seek support by Evans could be voided by the child (or the State, on behalf of the child) immediately upon birth. Support rights belong to the child, and cannot be contracted away by the mother. Thus, in the U.S., the moment the child is born, Evans (on behalf of the child) or the State could pursue the father regardless of any contracts.
    Still a crappy situation.

  4. Surely it would be possible for Evans and Johnston to reach an agreement in which he would be legally treated as an anonymous sperm donor from whom Evans would have no right to demand financial or emotional support.

    That would seem to be the obvious solution. Even if he’s not actually anonymous, I don’t see why he shouldn’t be able to waive all rights and responsibilities to the child. Of course, that’s probably illegal in Europe.

  5. RR3: But it is the case that anonymous sperm donors cannot be required to support the children that result from their donations, right?

  6. But it is the case that anonymous sperm donors cannot be required to support the children that result from their donations, right?

    “But Your Honor, I’m anonymous!”

  7. Funny how the headline reads “Court denies woman right…” instead of “Court upholds man’s right…”.

    And it was THEIR embryos, not HERs.

  8. Mikep: Perhaps I was being intentionally provocative with the headline, but good point.

    Still, if the guy had withdrawn his consent a day after the embryos had been implanted, the law gives him no say in whether or not the embryos should be allowed to develop and be born.

  9. I vaguely recall a story of a woman who was fighting her dead husband’s estate for the right to get pregnant by his frozen sperm. If she conceives a child with his frozen sperm then the kid is an heir, and the other heirs aren’t thrilled about it. Or something like that.

    Anybody else recall this story?

  10. i think I remember that episode of Law & Order too…

  11. While I could not come up with a better solution, this case certainly has a shade of gray involved. The conception has already occurred, as opposed to separate egg and sperm someone is trying to bring together post-breakup.
    I would of course have been best if they just froze her eggs intact without being fertilized, then she could have the man of her choice. I think there was almost as much consent when he aided the conception as there is when a man deposits sperm in a woman during ordinary intercourse. The latter, many people on this site would have no problem deeming consent to whatever the woman chooses.

  12. Even if the courts allowed the guy to waive all rights and responsibilities, there’s the very real possibility that at some point the child is going to intrude into his life.

    I have sympathy for the woman going through a painful procedure all for naught, but embryos aren’t babies, she hasn’t implanted them until now, and he’s well within his rights to refuse consent.

  13. I think the court made absolutely the right decision. It doesn’t seem outrageous to me to require the consent of both parties in a case like this.

    Yes, this is a genuinely sad, ironic case for the woman but the issue at hand is still whether the guy can be forced against his will to father children and be a parent.

    Even if the legal requirements (child support, etc.) are waived, he would still be the biological father. Should he have to go through life knowing that he has a son or daughter out there he didn’t want? When the kid grows older, will the father be obliged to have some relationship with the child if it seeks him out? How exactly does he explain this to any other children he may have?

    Should the state be able to force him to march through this emotional minefield?

  14. Ron – um, as to whether “anonymous” sperm donors can be pursued for support: I don’t know! I do know that attempts by mothers to waive support from fathers (either because they want them out of the kids lives, or for other reasons) are regularly invalidated by the Courts. Interesting question about anonymous donors – I’ll have to look it up.

    As to thoreau’s post, I remember a federal appellate cases involving a child, implanted and born after the father’s death, seeking Social Security death benefits. As I recall, the circuit court said the child could get them.

  15. Ron – um, as to whether “anonymous” sperm donors can be pursued for support: I don’t know! I do know that attempts by mothers to waive support from fathers (either because they want them out of the kids lives, or for other reasons) are regularly invalidated by the Courts. Interesting question about anonymous donors – I’ll have to look it up.

    As to thoreau’s post, I remember a federal appellate cases involving a child, implanted and born after the father’s death, seeking Social Security death benefits. As I recall, the circuit court said the child could get them.

  16. Interesting problem.

    In the process of becoming a parent in this way, when can either parent change their mind?

    What if it were he that wanted to continue the process against her wishes?

    The wonders of technology!!

    Seems to me that the point of implantation is a logical ‘point of no return’. (I won’t touch the abortion issue!)

  17. Ron – I think that a sperm donor, if his identity is discovered, can be held responsible for child support. A quick web searh indicates that PA has already held so; I think MD and WV (where I practice) would also hold the same. Now, can a clinic shield the names of its donors? I don’t know. However, think before you go get your easy $50!

  18. This is pretty simple. It’s obviously both of their embryos so they both must agree to their use. If the woman had half a brain maybe she’d have saved some unfertilized eggs (I’m no scientist but I assume this can be done?)

  19. They’re obviously*

  20. It was probably the correct decision based on the law, but it sounds like the law is flawed. Women who have only a few viable eggs should be able to maximize their chance of turning into children by having the paperwork signed and binding into perpetuity before the sperm is added.

    In general, women have fewer viable eggs than men have viable sperm.

    My recollection is that frozen blastocysts have better success rates than frozen eggs, but I could be misremembering and the rates could also have changed since I paid attention. However, if you assume that I’m correct, then if a woman only has a limited number of eggs, her best chance of having a child with her genes is to have sperm added to each of them after retrieval. She and her partner should be allowed to enter into a binding agreement that says that once they’ve been mixed, he has no say in what happens. That is different from saying that the default condition should be that he has no say.

    By allowing a couple to, before the sperm is added, make a decision that is binding afterward, you open up possibilities but don’t force anyone to do anything he doesn’t want to do. The man can still say “no, I want to be able to change my mind and withhold the right to implant,” in which case the woman can say “OK, I’m not going to use your semen to fertilize these.” It appears that such a contract contravenes the UK’s regulation.

  21. I am usually in agreement with Ron, but in this case I think he is clearly wrong. One reason I would never become a sperm donor, is because I would feel that any child conceived from my DNA would be my child. Relieving my of my legal responsibilities, would to my mind only serve to deprive me of my rights as a parent. It in no way alleviates the problem, in fact it compounds it. As for “if the guy had withdrawn his consent a day after the embryos had been implanted, the law gives him no say in whether or not the embryos should be allowed to develop and be born”, what’s your point? You just shifted the debate into abortion, and that is a whole different (festering) can of worms. Sure the law would allow the child to “develop and be born”, but the question of who’s child it is would still be contentious.

    I don’t see that there is much gray area here. If he doesn’t want to be a sperm donor, it’s abhorrent to force him to become one.

  22. “In this case, the court ruling is legally proper, but nevertheless seems unjust to me. Surely it would be possible for Evans and Johnston to reach an agreement in which he would be legally treated as an anonymous sperm donor from whom Evans would have no right to demand financial or emotional support.”

    For the life of me, I can’t understand how this ruling is unjust. Yes, the financial part is pretty straightforward, but how does one craft an agreement that absolves the father of any obligation to provide “emotional support”? What would the father’s obligation be in the absence of such an agreement? What’s his remedy if the mother breaches such an agreement? (“Your honor, she called me and said that my son wanted to talk to me. She has clearly breached the contract and I demand damages in the amount of. . . ummm . . . something or other.”)

    In plain terms, such an agreement does the father no good. His concern is (presumably) his own conscience and sense of responsibility. There’s no “just” agreement that can address that.

    Besides, whether a post hoc agreement is possible or not has nothing to do with whether the ruling is just.

    (Someday I’ll figure out HTML tags work.)

  23. Errr…that should be *how* HTML tags work. I’ll also get to work on divining the secrets of keyboards…

  24. I totally agree with anon2.

    Also, here’s the problem as I see it:

    1. Man and woman decide to have a baby. They take positive action to do so: have intercourse.
    Fertilization occurs. The woman can now go through with the pregnancy, or change her mind and have the embryos destroyed. The man has no say.
    2. Man and woman decide to have a baby. They take positive action to do so: fertility treatment. Fertilization occurs. The man can now go through with the pregnancy, or change his mind and have the embryos detroyed. The woman has no say.

    The difference between the two? A matter of physical space, apparently. Seems contradictory and illogical to me. Maybe this does argue the case for men to have more input in abortion decisions?

  25. Well linguist, I usually hear about woman’s sole right to the abortion decision because its her body, not because its her embryo. So i guess there may be no disconnect here as her body is not presently involved.

  26. Ron,

    Why do you consider the outcome to have been unjust? Certainly I feel sorry for the woman, but you seem to be implying that her desire to have children somehow outweighs or should count for more than his desire not to have children in this instance.

    In fact if you read beyond the jump on the article, the woman in the case has a very odd notion about the case,

    “I never will be able to accept that that he can choose when to become a father or not. He chose to become a father the day that he created the embryos.”

    This is why the court made exactly the right decision.

    Also, there’s nothing in the article that indicates the man doesn’t want to become a father purely out of financial reasons.

  27. >Surely it would be possible for Evans and Johnston to reach an agreement in which he would be
    >legally treated as an anonymous sperm donor from whom Evans would have no right to demand
    >financial or emotional support.

    While it would be possible, it would have no legal weight. Paternity is strict liability. Fathers cannot enforce contracts purporting to limit or deny liability for child support. I’m not sure a sperm donor actually has a legal right to avoid child support, as non-anonymous donors have found to their peril. If you could somehow identify the donor, I believe a court would award child support.

    >Also, there’s nothing in the article that indicates the man
    >doesn’t want to become a father purely out of financial reasons.

    Even if his sole reason was financial, so what? It’s his right to say no for any reason whatsoever.

  28. you seem to be implying that her desire to have children somehow outweighs or should count for more than his desire not to have children in this instance.

    The difference between unjust and unfair, perhaps: this man insists he should have a right to start a family when he wants to. OK. But he already had agreed to start a family with this woman, and in changing his mind has taken away her right to ever start her own family. That’s unjust. The court ruled properly, according to the paperwork that was signed, but this man should be shunned by all women in the world for being a shithead.

  29. Using the natural method of reproduction, Women have 2 chances to decide, and men have one. Nature built it that way, so men have to deal.. Fair enough.

    In this case, technology and the law provide *both* the man and the woman that second chance to decide, but the man is a shithead for doing what any woman could do up to 6 months afterwards? Quite the double standard!

    And if you say the man already decided to reproduce, so did the woman. Could he FORCE her to implant, even if she changed her mind afterwards? Of course not.

    I am fine with “her body her choice” but her body and her health are not involved here.

  30. Where are the people saying the embryos MUST be implanted? Come on ‘lifers, get on the ball! It’s a person, right? Don’t in-vitro fertilized embryos have a right to life? Oh, right, they are not really “Pro-life” just anti-abortion.

    I don’t see why a woman can’t elect for her unused eggs/embryos be used for stem-cell research, if they really are hers to decide what is done with them.

  31. the man is a shithead for doing what any woman could do up to 6 months afterwards?

    He’s a shithead because he entered a situation KNOWING this was her only chance to reproduce. Are you getting the fact that because of his decision she can never have children? That’s a bit different from abortion. Has there ever been a case wherein a women’s choice to have or not have children meant that the man in question coudl NEVER reproduce? If so, point me there.

  32. Those were the last six eggs that the woman had. If she is to bear children now it will either require techniques which haven’t yet been developed or it will require the use of donor eggs. The former seems fairly unlikely. The latter means that the kids will not be “genetically” hers (although she may have a close relative who could be a donor).

    I don’t think the guy is necessarily a shithead, but it does appear that the law could be better and that overall the law is unfair to women. Although it would be technically possible under some assisted reproductive circumstances for a man to be down to his last six sperm, in general that’s not what happens. There tend to be zero, or lots. That’s not true of women due to the limited number of eggs that can be retrieved in the best of circumstances and the way in which they exponentially degrade.

    Having children via donor eggs is more acceptable to some than others. My wife and I have a four year old son who is genetically both of ours and twin seventeen month girls who eggs came from an anonymous donor. We love ’em equally and haven’t seen any hints that relatives disfavor the girls. People who don’t know the girl’s origin claim to see my wife’s features in the girls, but people tend to see patterns even where they don’t exist. We had little dossiers on the prospective donors and selected primarily based on intelligence, choosing a donor mom who didn’t look particularly like my wife.

    In-vitro fertilization has turned what used to be only thought exercises into real-world dilemmas.

  33. anon2, your story puts this into perspective a bit.
    The courts had no choice but to rule this way. The woman should have read the documents more carefully.
    But I still say this one man is a shithead, and I hope that women who know him know about this and that he is subsequently denied having his own genetic family. (That’s my idea of fair, anyway). Keep in mind, they were engaged and were undergoing fertility treatment when her cancer was discovered. He therefore comes off looking like a complete and utter shithead, and I’ll stand by that.

  34. Linguist –

    You seem to be assigning blame for the failure of a relationship, by placing full accountability on one individual of the transaction.

    They are where they are because a relationship fell apart. The cancer is not an issue from the moral standpoint as no one would claim the reverse (IE couple with frozen embryos where relationship disolves, but sucks extra bad because man screwed from testicular cancer).

    It’s certainly a part of the story on the impact such real world decisions have, but doesn’t change how the situation presented itself and is neither unfair or unjust. Just a crappy set of circumstances, all preceded by one thing.

    Two people decided, possibly rightfully so, that they don’t want to be together anymore and that decision had consequences. That doesn’t mean the man or woman is right or wrong, but it certainly doesn’t mean the man is a shithead by itself.

  35. No, you’re still missing my point. He’s a shithead in the same way that a man who impregnates 12 women at once and refuses to pay for the kids is a shithead. I’m making a societal judgment of a man whose actions toward another person are deplorable.

    As a side note, I’ll reiterate: they were in fertility treatment. If the cancer had not been discovered, those embryos would have already been implanted. His decision to leave the relationship is fine, but its consequences are that the women involved has been left without any hope of having children. He bears responsibility for this in that he agreed to make the embryos in the first place. “I want to decide when I want a family.” Yeah, ok. You already did. He’s lucky he could get out of it, but he’s still a shithead.

    Like I said, the best thing that could happen is for women to agree with me. Most probably would.

  36. His decision to leave the relationship is fine, but its consequences are that…

    Here again – His decision to leave caused these consequences.

    You have no basis for determining it was his decision it was to leave.

    It could just as easily have been hers.

    Most likely it’s a combination of both.

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