Woman loses legal fight to use frozen embryos

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The Independent Online

A woman left infertile after being treated for cancer yesterday lost a lengthy battle to use her own frozen embryos to try to have a baby.

A woman left infertile after being treated for cancer yesterday lost a lengthy battle to use her own frozen embryos to try to have a baby.

Natallie Evans, 32, from Wiltshire, began legal action after she split from her partner Howard Johnston two years ago, having already embarked on a course of IVF treatment. After the relationship ended, Mr Johnston withdrew his consent for Ms Evans to use the embryos, which had been fertilised with his sperm.

The Human Fertilisation and Embryology Act states that consent from both man and woman is vital at every stage of the IVF process.

Last year the High Court ruled that the embryos should be destroyed as the father's consent had been withdrawn. Yesterday, Lord Justice Thorpe of the Court of Appeal said he was unable to overturn the ruling.

However, he added that the destruction of the embryos would be put on hold while Ms Evans decided whether she wanted to take the case to the House of Lords.

Ms Evans was "absolutely heartbroken" by the failure to overturn the ruling, according to Muiris Lyons, her solicitor: "Her frozen embryos represent her last chance to have a child that is genetically hers so she is completely distraught. We now have 28 days to consider whether or not to appeal to the House of Lords."

In March this year Ms Evans took her case to the Court of Appeal. She argued that as Mr Johnston had given permission for the embryos to be used even in the case of his death, there was the intention to continue treatment.

The interpretation of the High Court of the implications of the fertility act had been too restrictive, according to her counsel Robin Tolson, QC. The embryo was also entitled to the right to live under the European Convention on Human Rights, he argued.

As a result, Ms Evans should have been treated in the same way as women who conceive naturally and are not subject to the orders of men on whether they can keep the child, he told the hearing.

Lord Justice Thorpe yesterday rejected the arguments butacknowledged Ms Evans' tragic situation: "This is a tragedy of a kind which may well not have been in anyone's mind when the statute was framed."

"Where, as has happened here, the parties' confidence in each other's commitment proves ill-founded, there is nothing in the legislation to stop the woman trying again with another partner or with a donor," he added.

"In such a situation, the simple requirement of continuing consent can work hardship of a possibly unanticipated kind."

After meeting Mr Johnston in October 1999, the couple became engaged the following summer and lived together until he ended the relationship in May 2002.

It was during fertility treatment that Ms Evans was found to have pre-cancerous cells in her ovaries for which surgical removal was recommended. The couple were then offered IVF treatment at the Bath Assisted Conception Clinic.

Ms Evans claimed that Mr Johnston told her the embryos would always be available to her to use in future. Following their separation, Ms Evans said that he initially agreed that she could use them before he changed his mind.

Yesterday, Mr Lyons highlighted the implications for other women in a similar position. A second woman, Lorraine Hadley, was also involved in last year's High Court case but decided not to appeal.

Ms Hadley, from Stafford, was unable to use two embryos in storage fertilised with her former husband before the collapse of her marriage.

Lady Justice Arden also urged couples to consider making an agreement prior to embarking on IVF treatment to prevent further disputes arising in the case of the death or separation of the father:

"Any agreement between the parties would be subject to the 1990 (Embryology) Act, but early discussion could avoid heartbreak at a later stage."