Opinion

The 1 October High Court decisions relating to the frozen embryos of two women, Natallie Evans and Lorraine Hadley gave effect to the Human Fertilisation and Embryology Act 1990. It also upheld a key principle. Namely that, if circumstances change, both men and women have the right to vary or withdraw their consent to the use of the embryos. The case has also given a vital reassurance to clinics that, in adhering to the rules as set out in the act, they are acting within the terms of their licenses.

Schedule 3 of the act provides that men and women have to give consent in writing, detailing the use to which they wish their embryos to be put. Either party can then vary or withdraw consent at any time until the embryos are used in treatment services.

In Mrs Hadley’s case, seven embryos had been created. Three had been unsuccessfully transferred in the first round of treatment. Two of the embryos were not viable and the remaining two were the subject of the court proceedings. Mrs Hadley argued that the process of examining and selecting the embryos constituted ‘use’, meaning that Mr Hadley was too late to withdraw his consent. Mr Justice Wall recognised that ‘use’ did not always mean ‘transfer’. Merely looking at embryos under a microscope to determine which should be frozen or transferred could not constitute ‘use’, if it did, neither the man nor the woman could withdraw consent from that point onwards, and this did not reflect the purpose of Schedule 3 of the act.

The claimants argued that the state, in refusing treatment with these embryos, was unnecessarily and disproportionately interfering with their European Convention rights. Under Article 8, both the women and the men had a right to respect for their private lives. A refusal to treat was clearly interfering with the women’s private lives. Permitting treatment in the face of their opposition would have been an equal interference in the men’s rights, potentially leading to the birth of their children in circumstances in which they could not play an active part in their lives.

The claimants argued that the act gave a ‘male veto’ over the women’s potential pregnancies. They argued that in non-assisted conception, the man’s right to determine whether a pregnancy occurs ends when he provides his sperm. Thereafter, the woman has a right of self-determination over pregnancy.

IVF treatment is wholly different to natural conception in that it involves a period (potentially as long as 10 years) during which embryos are stored. During this period, either party could change its mind about continuing for a number of reasons. If the original consent were to be irrevocable, either party would be tied in to having a child in the face of the other’s wish to continue, despite having sound reasons for not wanting to.

The act does not provide a ‘male veto’. It gives an equal veto to women. If the men in these cases had wanted to transfer their embryos into new partners, the claimants would, quite properly, have been able to withhold their consent. But what if men promise women that they can use the embryos in any circumstances? Ms Evans claimed that her ex-fiancée had made such a promise and that she had relied on it to her detriment by not pursuing the option of freezing her unfertilised embryos. On the facts, Judge Wall did not accept that the elements of a promissory estoppel existed. In any case, the parties cannot ‘opt out’ of the consent provisions in the act, as this would leave clinics acting outside their terms of licences.

If the claims had succeeded, the clinics would still have been obliged to look at the terms of the original consent. Both men consented to use of the embryos in treatment together with the claimants. They did not consent to the women being treated alone. In reality, therefore, the clinics would not have been able to transfer the embryos in any event.

Judge Wall expressed sympathy for all parties, and particularly for Ms Evans, who cannot now bear a child that is genetically hers. In not allowing sympathy to cloud its judgment, the court endorsed the statutory scheme governing consent in IVF treatment. This is essential, not only for those providing fertility services, but also for men and women seeking treatment on an equal footing.