Turn-about is Fair Play?

March 8, 2006

Advances in fertility technology are creating new ethics battles every week, and this one is a doozy.

In a nutshell, a British woman is diagnosed with cancer. She and her partner have their gametes mixed in a lab. The resulting embryos are then frozen. The woman undergoes cancer treatment that leaves her infertile. Once the cancer is behind her, she wishes to have the embryos implanted so she can have a child. Problem is, she and her partner have parted ways, and he has withdrawn consent for the embryos to be used.

Desperate to bear her own child, Natallie Evans took her case to the Grand Jury of the European Court.

A panel of seven judges made the ruling, which read: “The Court, like the national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child.”

But it was ruled, in a majority verdict that, even in such exceptional circumstances as Ms Evans’, the right to a family life – enshrined in article eight of the European Convention of Human Rights – could not override Mr Johnston’s withdrawal of consent.

It also ruled unanimously that the embryos did not have an independent right to life.

You can imagine how well that last line sat with the fertilized-egg-equals-baby people, who can’t stomach the thought of embryos drying out in a trash can. But even amongst those who eschew embryonic rights, there’s divided opinion.

Baroness Ruth Deech, Ex-head of the Human Fertilisation and Embryology Authority, weighs in with perhaps the most obvious argument: that men – like women – should have the right to say no.

“At every stage throughout IVF, the consent of both the man and the woman must be preset and must not be withdrawn. It embodies equality between the sexes and consent which is deeply embedded in medical law, especially procreative law.”

“(Men) are being reduced to a sort of genetic blob and, having done their duty in the laboratory, are no longer necessary.”

John Harris, Professor of bioethics at Manchester University School of Law, believes that fertilization in a petri dish should be treated the same as fertilization in a woman’s body: the man’s consent is only relevant when he’s getting his freak on.

“Howard Johnston gave his considered, fully informed, consent to fertilisation of the eggs, the creation of the embryos and the ‘procreative enterprise’. The man consents to sexual intercourse. If the couple are trying to have children, he consents to the attempt to have children. If his partner becomes pregnant, he has no further say in the continuation of that pregnancy and the birth of that child.

Quite a conundrum. Ongoing consent, or consent at the moment of conception?

Harris thinks the court should contemplate who has more to lose. Hmm. That doesn’t make it any clearer for me. She may still mother a child and create a family through adoption, though many people put a high value on passing on their genetic material. It is curious to me why she had her embryos frozen, rather than eggs.

What’s your gut reaction?