Court rules that embryos cannot be used without consent
Dr Kirsty Horsey
Progress Educational Trust
01 October 2003
The UK High Court has ruled today that Natallie Evans and Lorraine Hadley cannot use their stored frozen embryos without the consent of their former partners. The women appeared in the High Court in June this year, asking Mr Justice Wall to prevent the destruction of their stored embryos, created using in vitro fertilisation (IVF). Both women want to complete their IVF treatment, against the wishes of their former partners, and contend that the frozen embryos represent their only chance to have a child.
Ms Evans had to have her ovaries removed when it was discovered that they were pre-cancerous. But before this happened, she had six IVF embryos frozen, created using her then boyfriend's sperm. When they separated, he asked for the embryos to be destroyed. Ms Hadley has two frozen embryos in storage, but her husband also refused to allow the embryos to be used after the end of their marriage. The women's legal claims centred on a challenge to the Human Fertilisation and Embryology (HFE) Act of 1990, which states that embryos must be destroyed unless both parties consent to their continued storage and use. But the women argued that once the embryos have been created and stored by a couple, it is too late for the consent given by either party to be withdrawn. They said that no viable embryo should be left to perish if one of the people who created it wanted it to live.
Lawyers representing the two women lawyers told the High Court that the provisions in the HFE Act breach the human rights of their clients- the right to found a family. They also contended that current legislation discriminates against the women because they are infertile and have to undergo IVF treatment in order to have children: if they could get pregnant naturally, their partners would have no say over what the women could do. But Mr Justice Wall said that, despite having sympathy with the women, he could not overrule the law. Only Parliament has the power to do this, he stressed. One implication of the decision, which the women have said they will appeal, is that fertility clinics will now have to ensure that couples having IVF are aware of the laws relating to consent, and of what would happen to any embryos that were created if the couple separated.
Responding to the decision, Dr Michael Wilks, chairman of the BMA ethics committee said that while the BMA empathised with the women's situation, it felt it would be dangerous to change the rules on consent retrospectively. 'The principle of valid consent is an important one that must be upheld', he said. Ian Mackay, of Families Need Fathers, said he believed the decision was sad but correct: the court had to consider what the effect on any resulting child might be of knowing its father had 'specifically opposed' its birth. 'We can also speculate as to what the decision would have been if the father had formed a new relationship and had wanted to use the embryos which had been produced, and implant them in his new partner', he added.
© Copyright Progress Educational Trust
Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.
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