"Please, Howard, just think what you are doing to me. Let's stop going through the courts and let me have what I want." This impassioned plea could have been a line from a Bette Davis movie. In fact it was the last desperate attempt by 34-year-old Natallie Evans to persuade her former fiancé, 29-year-old Howard Johnston, to allow her to try to become pregnant with one of the six embryos they jointly created five years ago. Last week the European Court of Human Rights dismissed her appeal, based on the right to a family life, to overturn a British ruling that the legal agreement Evans and Johnston signed at the time of the embryos' creation (stating either party could withdraw consent for their use at any time) was binding.
Evans' dilemma is made all the more agonising by the fact that her ovaries were removed shortly after the fertility treatment because of a precancerous condition. Her last chance to have a child that carries her own genes is a change of heart by Johnston. And the likelihood of that? Yesterday's press carried this message from Johnston to Evans: "Natallie might want to camp outside the clinic, because that vial in the freezer represents something more to her than it does to me, but I will not change my mind." Many commentators have seized on Evans' use of the phrase "let me have what I want", with its connotations of Violet Elizabeth Bott. Of course, they say, we feel Natallie's pain but she's thinking only of her own needs and not of the child's, who will grow up without the steadying hand of its natural father.
Howard Johnston, meanwhile, with his middle-class, public-school background, has played a blinder to the right-minded intelligentsia whose opinions hold sway, declaring: "What really matters is not what Natallie or I might want, but the future welfare of the child." Ah yes, of course, its welfare. Though Johnston's sympathies for this potential child's well-being seem rather less well founded when he talks about "that vial", which "represents something more to her than it does to me".
I suspect that Johnston's motivation is every bit as emotional as Evans' - not that that in any way disqualifies his, or for that matter her, case. It sounds to me as though he dreads that someone he has fallen out with as cataclysmically as he has with Evans should retain a lifelong hold over him in the form of a child who carries his DNA. And it seems to me the true emotional subtext of his message to Evans is: hell will freeze over before I let you get your grasping mitts on my gametes.
Having said that, there's no doubt that the court in Strasbourg came to the right legal decision - the rules set down by the British Human Fertilisation and Embryology Authority (HFEA) clearly state that both parties must consent to continued storage or use of embryos - but I doubt they came to the right moral one. Many experts agree. John Harris, professor of bioethics at the Manchester University School of Law, said to the BBC last week: "These two people made a decision to try to have children. Howard Johnston gave his considered, fully informed, consent to fertilisation of the eggs, the creation of the embryos and the 'procreative enterprise'. I do not see why he should now be permitted to break this contract and withdraw unilaterally from the procreative enterprise with such disastrous consequences for Natallie."
Professor Thomas Baldwin of York University, a former deputy chairman of the HFEA, said: "The present UK law on this matter should be modified." Dr Gillian Lockwood, chairwoman of the British Fertility Society ethics committee, thought changes should at least be considered when the HFEA Act is redrafted. Ethical dilemmas thrown up by continuing advances in fertility technology demand that we keep reassessing the guiding legislation. Evans' legal battle would not be in vain if the laws governing the consent given by couples involved in IVF were changed to allow them to opt for a set period that was deemed to be fully covered by the original permission. In other words they could agree that their consent legally covered the five-year period that is the usual legal shelf-life for frozen embryos.
What these cases take us back to is article 12 of the European Convention on Human Rights - just what is meant by the right to marry and found a family? Should we interpret this as meaning every woman has a right to a baby using the best shot given to us both by nature and by all the available fertility treatments? And what about article 14 of the convention that prohibits discrimination? Doesn't this mean that single and lesbian women should receive equal priority when it comes to starting a family? Apparently British hospitals are beginning to move towards that conclusion. Last week's Independent on Sunday revealed that some hospital trusts are already offering single women in their 30s and 40s free IVF and other fertility procedures on the NHS. There was predictable outrage, with people citing the need for fathers and saying piously, like Howard Johnston, the welfare of the child should come first. But the HFEA stipulates under law that clinics must ensure single women have fully considered the need for a father figure before being offered treatment.
As for the "welfare" issue, I find this the biggest red herring in the whole debate. What really gets me is the idea that any normal person setting out on thejourney which is having a baby finds their starting point and inspiration in some notion of the child's welfare. I didn't sit down with my husband and say, "I know what, let's have a baby because bringing it into our immaculately modulated and nurturing sphere will be the best thing we can do for the little mite!" In real life the facts were: I hit 35; my body clock rang an earth-shattering alarm, and I said, "I want a baby." My husband at 50 felt much the same. The brutal truth is we had our son because we thought it would be good for our welfare - which it has been. Whether it will prove any good for his remains to be seen.
Biology follows a rationale far removed from the question of ethics; it drives most people on the planet to want a child of their own loins more than they will desire anything else. It's missing the point to say to Natallie Evans, as Johnston has done, that she could adopt or use donor eggs. For the majority of would-be parents while there's even the tiniest chance you can pass on your own genes that glimmer of hope will drive you. Unpalatable fact though it may be, the hordes of needy, abandoned children loom less large in the broody imagination than the one you long to carry in your womb. Every day I stare in fascination at my two-year-old son and see my own face, shape and gestures at the same age reflected back at me. For some reason I had never imagined that a boy-child could be so much my own - or as I say unkindly to my husband, "a triumph of the Pelling genes over the MacKinnon ones".
The important issues that need urgent addressing are these: we live in an age of declining populations in the West. We also live in an age where the traditional two-parent, heterosexual family structure is also in decline. Many people are not finding a life partner, but still want to raise children. Howard Johnston says he wants to be "a responsible parent" when the time comes. I'm sure he does, but he'd better wait and see if a responsible woman wants to have his kids when he's reached this luxurious perfect time.
If we have rigorous vetting procedures in place we should encourage every person who passionately wants a child - male, female, straight, gay - and has the economic and emotional capacity to support it to get on the fertility ladder. The best mums and dads tend to be those people who rapturously embrace the privileges of parenthood; the worst are usually those who have it thrust upon them by an old-fashioned, ill-considered, unprotected heterosexual shag. If this new order means free IVF to single lesbians and single men hiring surrogate mothers, so be it. We may not all welcome or applaud such developments, but we damn well have to live with it and legislate for it.Reuse content