Deborah Orr: There are times when our ethics and our laws should come before our sympathy

Ms Evans wants the ability to ignore or disregard a partner to be considered a human right
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The Independent Online

The case of Natallie Evans, whose six frozen embryos are to be destroyed against her will, is being described as yet one more example of how our society's ethical standards struggle to keep pace with its medical advances. How we flatter ourselves. On the contrary, this sad situation has come about because the opposite has occurred.

In messy real life, people sometimes disregard the needs, wishes or advice of former partners, unborn children, medical advisors or all three. But in the mediated environment of a laboratory, as Ms Evans has learnt to her bitter cost, it is not nearly so easy to do this. The necessary involvement of committees, contracts, third-party intervention, third-party liability and so on means that the reproductive processes governed by science are subject to far more moral scrutiny than those governed by nature often are. It is the awful spectacle of seeing a woman's single-minded and desperate need to have her own child confounded by dispassionate logic that makes this case so compelling and emotional.

Five years ago, Ms Evans was diagnosed with cancer and told that the treatment necessary to save her life would leave her infertile. With her partner of the time, Howard Johnston, she undertook IVF and had the embryos frozen. What she did not realise was that the embryos could only be used with the consent of both donors. When Mr Johnston withdrew his consent, Ms Evans's right to use the embryos was also terminated.

The law on this matter is quite clear, no matter how sorry one feels for Ms Evans, which is why she has found again and again that the courts uphold her former partner's position. Yet, after the European Court of Human Rights yesterday became the third court to throw out her claim that her most basic rights as a woman were being abused, Ms Evans decided to appeal once more. She was spurred on, she told the media, by the fact that this time two of the seven judges in the court had ruled in her favour. Until that moment, no other judge had "been on my side".

Ms Evans's argument, and the argument of many of her supporters, is that her rights as a woman have been violated by this legislation. She wants to maintain the rights over her embryos that would pertain had they remained inside her body. Mr Johnston would not have been able to make the commitment towards fatherhood of fertilising her eggs, then changing his mind, if the embryos had been naturally conceived. In this argument, Ms Evans invokes the idea of "a woman's right to choose".

Mr Johnston, however, invokes an argument that is much less easy to sustain in real life, and cites his own right to choose "if and when" he starts a family. He does not want Ms Evans to have his child, because he does not want his child to be brought up estranged from him. His arguments chime with those of many men's groups, who fulminate against what they see as the no-win situation that men are in when it comes to reproductive rights and responsibilities.

Women do not need the consent of the father to arrange an abortion, for example, or to refuse to consider such a course. There has been at least one attempt, indeed, to mount a legal challenge against a woman's right unilaterally to decide whether to have a termination, which ended in failure. Men are often supported in such arguments by pro-life groups. In this case, of course, the pro-life groups are - for once - firmly on the side of one particular woman's right to choose.

In fact, listening to Mr Johnston's side of the story, one is struck by the similarity of his own arguments to those cited by women who choose abortion over adoption. Women prefer to end pregnancies early because the idea of bringing a baby to term and then handing it over to the care of others is too painful a thought. What we are witnessing here is closely akin to a man opting for abortion against the will of his partner, in just the way men so bitterly complain that women sometimes do.

Men complain too about how they are expected to provide financially for children they did not want to have, and this has been cited as an issue in the case of Evans vs Johnston. Again, it's not the central issue for either party. But it chimes with an atmosphere of resentment, in which many men perceive themselves, sometimes with justification, as unwanted in the reproductive process, except as providers of sperm and finance.

In emphasising the rights of both partners over the embryos they have created together, the legislation governing their use can be viewed therefore as truly progressive, an example of how men and women ought to behave in the real world, rather than how they actually do. In a society that has seen the old repressive rules about sex and reproduction fall away, there is often a sense that the new guidelines are altogether too hazy. Perhaps it is the thought that this is a case that gives our culture an opportunity to look at itself in a new way that has sharpened public interest in what is, after all, a highly unusual situation.

My compassion for Ms Evans in her terrible situation, unable to get her hands on the flesh of her flesh and nurse it to life, yet knowing it is there awaiting her ministrations, is strong. No judge so far has failed to convey great sympathy to Ms Evans while at the same time dashing her hopes. One does find oneself wishing, as Ms Evans does too, that Mr Johnston is simply going to relent, and let her bring up his child as if he were a nameless donor.

Except that that was not the agreement that the pair entered into. Ms Evans says she did not read the small print, and says that at the time she was under too much stress to be expected to take in all the legal nuances. Yet we all understand that in matters of the law, ignorance is no excuse. Ms Evans wants the ability to ignore or disregard a partner to be considered a human right. But this cannot be granted to her. In practical terms, it is important to protect the right of a woman to have an abortion - or not have an abortion - without a partner's content. Likewise, on the rare occasion that such an eventuality comes up, it is important to defend a man's right to the same.

Yet it is not just about that. What we must consider, when the making of babies moves out of the personal sphere and into the scientific arena, is what sort of ideal set-up we want for our children. There has been a tendency to encourage the idea that women are perfectly well equipped to bring up children alone. This most recently has been debated because the NHS may start giving IVF to single women using donor sperm. Yet if we also want men to become more involved with their children, rather than less, then we have to understand that the promotion of mother-only families is not going to persuade anyone that fatherhood is valuable or valued. Howard Johnston, we have to assume, takes fatherhood so seriously that he is not wiling to enter into it under such odd circumstances. In the end our ethics as well as our laws should prompt us the respect this.

d.orr@independent.co.uk

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