Women can't claim all the rights over children

If an embryo has been produced, a man and a woman should have an equal say in what happens to it
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However much sympathy you feel for Natallie Evans and Lorraine Hadley after yesterday's court ruling in London - and I must admit that I cannot summon up a great deal - one immutable fact remains. For all the spectacular scientific advances of recent years, it still takes two people, a man and a woman, to produce a child. It is no more than the logical extension of this fact to conclude that, if an embryo has been produced and frozen for future use, the man and the woman should have an equal say in what happens to it.

This was the position taken by Parliament when it passed the Human Fertilisation and Embryology Act (HFEA) 13 years ago, and it remains the legal position today, following the ruling by Mr Justice Wall. More surprising than the ruling, perhaps, is that the two women allowed themselves to hope that any other outcome might be either possible or desirable.

Ms Evans and Ms Hadley both had embryos in storage, produced as a result of fertility treatment undertaken with their then partners. Ms Evans has since undergone cancer treatment which has left her infertile; Ms Hadley, at 37, is approaching the end of her child-bearing years. They had applied to the court for permission to continue their fertility treatment, even though their former partners objected. The women argued that the frozen embryos offered them the last chance of having a child and that refusal would violate their rights. If this argument had prevailed, however, the effect would have been to give their desire to become mothers precedence over the desire of their ex-partners not to become fathers - at least not fathers of these children. Such a ruling would have skewed legal judgments on relations between the sexes in a wholly untenable way.

That the women and their lawyers decided to go to court in the first place is an unfortunate reflection on some interpretations of women's rights. The arguments about a woman's right - or not - to have a child have been rehearsed recently in connection with proposals that fertility treatment should be available free on the National Health Service. But the specific case presented by Ms Evans and Ms Hadley is different as it pits the rights and interests of women directly against those of men.

Victory for the two women yesterday would have amounted to a defeat for the men - not just the two ex-partners in this case, but potentially very many more. The motives of the women in this case - to exploit their last chance of having a child rather than to perpetuate an extinct relationship - are understandable. But so is the position of the men: why should they agree to father children by women with whom they now have nothing in common, with all the risks that this could entail?

Even if the women were to relinquish any claim to financial support or maintenance payments as a condition of proceeding, this would still not alter the fact that the women would have been given the right to exercise a choice - and the men would have been denied an equivalent choice. It would be hard to deny the resulting children the right to know the identity of their fathers. It would be equally hard, if not impossible, to deny them the right to trace their biological fathers in later life.

Lawyers for Ms Evans and Ms Hadley argued that the law as it stands draws a false distinction between natural and scientifically assisted conception. If, for instance, the women had become pregnant naturally, there would have been no obligation to inform the fathers and the fathers would have had no veto on the pregnancy. Superficially fair, such a point is actually ludicrous. It neglects the fact that the women had undergone fertility treatment with their partners. This was a joint enterprise. When the two couples broke up, so did the agreement.

Where the women have a better point is in arguing that their defeat amounts to victory for the men. One side ends up with the choice - the men can refuse permission for the frozen embryos to be used - while the other side, the women who are left childless, has none.

This is true, but it reckons without the resulting children. In whose interests and for whose satisfaction are these children being conceived? The HFEA of 1990 was quite right to stipulate that embryos should be destroyed unless both parties agree to their storage and subsequent use. The likelihood that a child conceived without the agreement of both parents could become the object of endless dispute and emotional blackmail is too great for any court to allow.

There are parallels to be drawn here with the plight of children in divorce cases. Women have traditionally been accorded custody of the children and the men have been required to pay - but without a corresponding right of access. This situation is slowly changing - as it must. But women cannot claim all the rights, just because they are the ones who physically bear the children.

It is easy to say that this case should never have come to court at all. But that would be wrong. Here we had women's rights pitted against men's rights, both measured against human rights in general. There has been so much social change over one generation that the arguments needed to be heard, the limits needed to be tested in court. By upholding the law as it stands, the ruling confirmed that all rights have limits - women's rights too - and this is where it should be drawn.

The latest case is a little different from that of Diane Blood, the woman who was refused permission in this country to use the frozen sperm of her dead husband, but allowed to seek treatment abroad. The difficulty here was as much of a legal technicality as a moral dilemma: her husband had not expressly approved the use of his sperm before he died.

To many of us, Mrs Blood's single-minded quest to bear the children of her dead husband was hard to comprehend for all manner of reasons. There was nothing to indicate, however, that her husband would not have given her decision his blessing, nor was there any chance that the children would be subject to any later legal disputes. There were none of the difficulties that attended the case of Ms Evans and Ms Hadley, and it is quite possible that a judge presented with another Mrs Blood might now rule differently.

The victory that Diane Blood eventually won from her legal defeat - she now has two children - indirectly suggests one change in practice that might prevent disputes such as the one that brought Ms Evans and Ms Hadley to court. In their case, it was embryos - rather than eggs and sperm - that were frozen and stored. Had the eggs and sperm been stored before fertilisation, the delicate questions of ownership and authority would probably not have arisen.

Ms Evans and Ms Hadley say they intend to pursue their claim all the way to the European Court if necessary. I wish neither of them any ill, but I hope that they lose the legal argument as incontrovertibly as they lost it yesterday. The chaos of rights and responsibilities that would be unleashed if they won would be too great to contemplate, not to speak of the aggravation to relations between the sexes that - thanks to the necessary progress in women's rights and the understandable demands for equal consideration from men - are quite tense enough already.

m.dejevsky@independent.co.uk

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