Frozen embryos as property in a divorce
(a law blog)

Bio-ethics never gets any easier. Take a situation where, after the break up of a heterosexual relationship, there are frozen, fertilised eggs and the woman wants to use them to have a child on her own.

In societies with legalised abortion courts have rejected arguments that fathers have a right to prevent a pregnancy’s termination; but where there has been conception – but not impregnation - does the “father” have rights over biological material that is partly his?

The position at British law is that an embryo cannot be used unless both partners consent to the use. This “double consent” is also needed to continue to hold embryos in a clinic: if one partner withdraws that consent, the embryos must be destroyed.

The obvious solution for a woman under this law is that some of her eggs should also be stored unfertilised so that she is not solely reliant on the consent of a man who may not, in the long run, want to have children with her.

While it will obviously cause great distress if a woman cannot have a desperately wanted child, it’s hardly a good idea to lock men into parental responsibilities after a relationship’s breakdown when no pregnancy actually commenced during the relationship.

The case of Evans v Amicus Healthcare is undoubtedly tragic. In Ms Evans case, unfortunately, no-one thought about storing unfertilised eggs, until after the worst had happened. Suffering ovarian cancer, Ms Evans had all her viable eggs removed and fertilised with her partner’s sperm – they later separated and her partner, not wanting children with her, withdrew consent for the eggs to be kept.

Commentary in the UK (none of which appears still to be on-line for free) has had extreme, and predictable, wings. Some have crowed about a legal triumph which prevents men being seen as “mere sperm banks”; while some have seen a “male veto” over a woman’s right to control her own body.

Obviously, it’s neither. It’s simply a case of a law that has sought to balance individual rights and, in a hard case, has had a very bad result for one individual - but with no unfertilised eggs in storage, someone was always going to lose out.

There has been denunciation of Ms Evan’s partner as “one of the great moral cads of the age” (Joyce McMillan, “How the verdict in frozen embryo case got it wrong”, The Scotsman, October 4, 2003), for his selfishness in, effectively, permanently denying her children.

But this was no simple case of spitefully saying “you can’t have what you want, though I could easily give it to you”; nor was it a family law case about living children, with which two adults had existing parental ties and had assumed the duty of bringing them up. Her partner would have substantial financial commitments to these children during his life and, under inheritance law, after his death. These issues would certainly affect his ability to contribute to the material security of any future (wanted) children he might have.

These are not “cold” financial issues, as anyone who has seen bitter family fights over child-support or an inheritance would realise. Nor is it saying Ms Evans is a grasping gold-digger. She might somehow (though it would not be legal) excuse her former partner from child support payments; no legal arrangement, though, could completely cut them out of a right to inherit from him. The only point I am making is that bringing children into the world has inescapable consequences for both parties. When two people have irreconcilable differences over whether they want children - someone is not going to get what they want.

Yes, a childless woman may feel intense grief over that fact – but as a female friend said to me recently, having a child is, for most people under most circumstances, a deliberate choice. The desire for children is not shared by every woman or every couple. If people have children, they do it for their own reasons.

That makes it an essentially selfish choice, in the sense that it is something done for the parents’ own motives. It is, however, a socially expected and valorised choice.

What I find disturbing about this debate is that it seems to cast women in a biologically determinist light: victims of a cruel body-clock and attendant emotional distress if they cannot have children. By the same token men are reduced to a stereotype of economically selfish commitment-phobes.

I think both men and women deserve a higher standard of debate, where “the right to have children” isn’t an unproblematic moral trump card.