Monday, June 28, 2004

The injustice of it all

Well. Since I am having a shitty time, I am gonna do what I quite often do (no, not eat floor cake, I already did that earlier) and slap myself around the head with a little perspective. I'm going to write about somebody who is having an even crappier time than me.

The court's decision in the case of Evans v Amicus makes for some interesting reading. The story, for those of you who don't like clicking links, is simple and sad. Natallie Evans, upon learning that she had pre-cancerous cells in her ovaries, and on the advice of doctors who advised that she would be rendered infertile by the chemotherapy, decided that the best chance for having a child was to freeze some embryos. Her then fiance Howard, assured her that there was " no chance" of them ever splitting up, so they decided to go ahead and fertilise those embryos with Howard's sperm for future use. So far, so good.

Except that by law here in the UK, consent must be given by both the man providing the sperm and the woman providing the eggs to allow storage and subsequent use of their embryos in IVF treatment. However, if either party withdraws their consent before the embryos have been used, the clinics must allow the embryos to perish.

You can guess where this is going, right?

Sure enough, one day Howard changes his mind, decides Natallie is not the one for him after all, and the frozen embryos...well, thanks but no thanks. Just slip out the back, Jack, make a new plan, Stan. Natallie, who by this point had her ovaries removed altogether in the course of her cancer treatment is understandably distraught at Howard's decision to renege on the deal. Thus, the court action.

Now, if you are at all interested in things legal, this case is a real hotbed of jurisprudential yumminess. There are some real emotive issues at stake here, including about the rights of a party to withdraw their initial consent to IVF treatment, the rights or lack thereof of the embryos (which in Natallie's mind are already her "babies frozen in time"). Whether the embryos can be considered "property" of one or both parties, and if so should one of them be able to make a decision which unilaterally results in the destruction of that property. Add some extra human rights discussion thrown in for good measure- and what you have here is a heady brew of a couple of guys in wigs trying to sort out what is basically just a big mess.

There are some perturbing angles. For example, in reading an article published by Natallie's lawyer, this made me pause:

A woman who conceives naturally has an absolute right of determination over the foetus but, because of her infertility, Natallie is prevented from conceiving naturally. Is she being discriminated against because the Act permits Howard to have the final say? Is she discriminated against on the grounds of disability (her infertility) when compared with women able to conceive naturally and thereby protect their embryos from the whims and wishes of their partner?

Difficult. The court said no. The logic was that in some cases, it may be the woman who has the "final say" in deciding not to proceed. How equally unjust if the law required implantation where the woman had changed her mind.

It's true that an infertile woman has all sorts of barriers and hurdles thrown in the way en route to motherhood, and it does seem completely unfair. But I think, ultimately, the court got it right on the legal points in this case. The law says that for this particular medical procedure, both parties must consent.

Whether or not that law should be revisited is a discussion for another day. My view is that on a point of principle, it simply should not be for the courts to start re-writing the legislation in "hard cases"- because that way disaster lies.

Imagine if their Lordships took it upon themselves to start denying women abortions, or forcing implantations on the unwilling because of a father's emotive plea. It would be unthinkable and in my opinion, it would be unbearable. The law, my friend, is a sharp, sharp, double edged sword.

It doesn't change the fact that this woman got a truly raw deal. Cancer. The end of a relationship. And the loss of the chance to be a mother to her genetic child. She now has less 28 days to appeal to the House of Lords, failing which the embryos will be destroyed. The prospects of success in her legal challenge do not seem good. My heart goes out to her for her loss, for the injustice of it all, which goes beyond the law.

I hope I've not bored all of you good readers with these ramblings. It's just that I feel, increasingly so, that wherever we live, we must pay attention to these issues. To decisions being made by those in power, by those who make and hold the law in their hands.

Because there but for the grace of Jesus Gay go I.


At 4:48 AM, Blogger lobster girl said...

Wow, what an ethical quagmire. But you are one smart cookie. Your description of the case ... and defense of the verdict ... makes sense of a complicated scenario that would make my head spin if you weren't explaining it. I agree that the law was respected, and probably for the good of all in the long run. Though, hell, that poor woman. What an impossible situation. It does put things into perspective, huh?

At 5:42 PM, Blogger Soper said...

I've been thinking about your post all night. I'm a lawyer in the States, so I am unsure what the court's ruling was based on and how it differs from our laws. It's been a while since I've read the seminal U.S. cases on these issues, but from what I see there are two main issues here: (1) bodily autonomy and (2) property rights.
I see the logic of your argument, i.e., that we cannot force a woman to bear a child, therefore we must protect the man's analogous right not to be a father, but I think there is a key distinction. I don't think there IS an analogous male right to the bodily autonomy argument. Howard can never be forced into carrying a child against his will. The only thing he can be forced into is parenthood, which I think is a distinct issue.
Let's reverse the current situation: let's say it's Howard who is now infertile, and his wife wants the embryos implanted in her. The biological mother wants them destroyed. The first argument has no weight here -- the biological mother's right to bodily autonomy is intact; the implantation of the embryos into Howard's spouse will have no effect on her body. The only problem BOTH parties share is one of parentage -- i.e., the right NOT to be a parent. This is a LEGAL definition, and therefore has a simple, legal remedy -- the party who wants the implantation can have the legal obligations of the protesting party severed. If Howard doesn't want to be a dad, he doesn't have to be, and vice versa. Happens all the time, everyday (adoption, egg/sperm donation, surrogacy, abuse, neglect, etc.).
The second issue, one of property rights, can be easily settled. This is a joint tenancy issue, and, as with all joint tenancies, has the option in a fundamental use dispute of being dissolved, apportioned, and compensated. The joint ownership of the embryo is severed, the embryo awarded to the desiring party, and the protesting party "compensated" by having their parental obligations terminated. I don't see a reason for the embryo to be destroyed, or for Howard to be pitching such a bloody fit. There are plenty of people who create biological children and walk away from them; I don't see why the court won't let that happen here. What do you think? I'll be curious to see what happens.


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