Pro bono duo helps man in fight not to have IVF child with his ex

Howard Johnston has so far successfully fought off his ex-girlfriend’s attempts to save frozen IVF embryos from destruction. He has always maintained that he neither wanted the financial or emotional burden of a child with Natalie Evans. She argued that the frozen embryos offered her the only chance to have children after her ovaries were removed to avoid a cancer threat.

“His main objection was that his relationship was over and, in the normal course of events, your ex can’t then force you to have a child with them,” explains James Grigg of Cirencester firm Davey Franklin Jones, who advised Johnston pro bono on the case. “He couldn’t deal with the situation where, as it was suggested, she could have the child and he’d bear no financial responsibility. The point was he’d know he was the father of the child and he couldn’t in all good conscience just delete that from his mind. He would have moral responsibility for the child.”

The couple had agreed to IVF treatment before they split, but Johnston then changed his mind about having children. Under the Human Fertilisation and Embryology Act, unless both parties consent to storage and use, the embryos must be destroyed.

Evans’ diagnosis meant her ovaries were removed. Doctors then took six eggs and fertilised them with Johnston’s sperm. Last June the Court of Appeal ruled that Evans could not use the embryos, but Lord Justice Thorpe said they would not be destroyed until Evans decided whether or not she wanted to appeal to the House of Lords. The court described Evans’ case as “a tragedy of a kind which may well not have been in anyone’s mind” when the law was drawn up.

Grigg says his client was “on the cusp” of legal aid eligibility but did not qualify because he received a bonus which pushed him over the limit. The solicitor referred him to a number of London specialist firms, but they were not prepared to take the case.

“He was very clear about what should and shouldn’t happen, but she had all the big guns representing her. The press was against him and he was having it from all sides,” says Grigg.

The House of Lords has denied leave to appeal, but the case is now en route to the European Court of Human Rights. “In the meantime it’s a possible criminal offence… to continue storage of the embryos,” says barrister Kambiz Moradifar of St John’s Chambers in Bristol, who is representing Johnston and who also gave his services without charge. “The Human Fertilisation and Embryology Authority is applying to the High Court for a declaration that they shouldn’t take steps against the clinics for continuing storage of the embryos, because on the face of it that seems illegal.”

Running a case like this pro bono is a big commitment for a small firm and member of the bar. “The time one takes off work to devote to a case, being self-employed, is time that you aren’t earning money,” says Moradifar, adding that the pile of legal authorities ran to “about 40 bundles”.

“Putting aside court appearances, I’ve probably spent in the region of a month on the case,” he continues. “But just because you’re doing a case on a pro bono basis, you can’t cut corners. If you take such a case on, you have to do it properly.”