Natallie Evans’ Case: Some Lessons for the Parliamentary Review of the Human Fertilisation and Embryology Act (1990)? (1)
By Professor Sally Sheldon, Keele University Law Department

'Ms Evans is a 'hard' case. Ms Evans is the victim of her physical condition and has had the [misfortune] to suffer relationship breakdowns both with her former husband and Mr. Johnston. She was also obliged to enter into IVF in dramatic and hurried circumstances. It has to be said, however, that nobody can legislate for relationship breakdown, only for its consequences.' (Evans HC, at 260).

In October 2001, Natallie Evans was told that, due to the presence of serious tumours, both of her ovaries had to be removed. In order to preserve some possibility of having the child she had always wanted, she agreed for some eggs to be harvested from her and for embryos created from them and the sperm of her partner, Howard Johnston, to be stored for future use. Following the removal of her ovaries, whilst still able to carry a pregnancy normally, Ms Evans was left unable to conceive spontaneously. Consequently, use of the frozen embryos stored before her surgery remained her only hope of having her own genetic child. But in May 2002 her relationship broke down and, in July of that year, Mr Johnston wrote to their clinic requesting that their embryos be destroyed.

Ms Evans was devastated and brought an action requesting that she should be allowed to use the stored embryos in order to become pregnant. It should come as no surprise that this action has failed in both the High Court and Court of Appeal, and leave to appeal to the House of Lords has been denied. The Human Fertilisation and Embryology Act (1990) gives both genitors a clear and unambiguous right to withdraw consent to the use and storage of embryos, and this was reflected in the consent forms which Ms Evans and Mr Johnston had signed at the time their embryos were created. What is less apparent is whether the Human Fertilisation and Embryology Act (1990) provides for an appropriate outcome in this case. The 1990 Act is currently under review and is likely to be subject to some reform. In my opinion, this review could learn some useful lessons from Evans. (2) Specifically, given that it is accepted that the ethical foundations for the principles elaborated in the 1990 Act rests on the 'twin pillars' of consent and child welfare, what light can Evans cast on each of these?

1. Consent

i) Quality of Consent

'For Ms Evans this is a tragedy of a kind which may well not have been in anyone's mind when the statute was framed … [H]ad there been any doubt about the durability of Mr Johnston's commitment, or even time for Ms Evans to reflect a little about the future, different boxes might have been ticked and the present impasse avoided. (Evans CA , para 75)'

Significant guidance regarding the information which must be given to assisted conception patients is contained in the HFEA's Code of Practice. This provides rather more detail on what information should be imparted to patients, than how it should be given. A noteworthy exception is that it provides:

Centres should allow people seeking treatment, people considering donation and those seeking storage sufficient time to reflect on their decision, before obtaining written consent…' (para 7.4).

Ms Evans and Mr Johnston had made the decision to investigate the possibilities offered by infertility treatment services before finding out about Ms Evans' cancer, attending the clinic for the first time together in July 2000. Further, it seems likely that Ms Evans was given all the information which she needed to consent to embryo storage and that she was (or ought to have been) aware of Mr Johnston's right to withdraw or vary his consent. However, this information was given to her and all consent forms signed within an estimated ninety minutes of having been told she was to lose her ovaries and her ability to conceive. Small wonder, then, that Ms Evans remembers the session at the Clinic as 'like being in a room full of water' and felt unable to 'hear what [Mr Johnston and the fertility nurse] were saying' and to take in all the information offered. In her statement to the Court, she says:

'I would say that our whole visit to the clinic took no more than about an hour. I know that during this visit we discussed a lot of things about the IVF treatment and what it would involve. It was a bit overwhelming. I was very anxious about my cancer, the surgery I needed and the whole IVF process. It was difficult to take in everything that we were told, and I have no clear recollection of what was or was not discussed.' (Evans HC, para 46).

Ms Evans' cancer meant that medical treatment was urgent. It surely did not dictate that all relevant consents must be taken, and crucial decisions made '[w]ithout interval for reflection of adjustment', within less than two hours of hearing her diagnosis. As Thorpe LJ notes, 'had there been … time for Ms Evans to reflect a little about the future, different boxes might have been ticked and the present impasse avoided' (Evans CA, para 75).

Furthermore, Ms Evans appears not to have been offered confidential discussions or counselling away from Mr Johnston, despite the fact that any woman might have doubts about her relationship or questions which she would not want to ask in front of her partner. Neither was she given any time away from Clinic employees so that the couple could discuss their options together. Mr Johnston reports that the only time that he and Ms Evans had time to discuss matters alone was when they 'talked in whispers for about 60 seconds whilst staff went to obtain an IVF kit.' Though not of immediate relevance to the legal issues raised in this case, it is likewise noteworthy that neither was Mr Johnston offered confidential discussions with a Clinic employee. On the day on which the consent forms were signed, Mr Johnston was clearly concerned to support a partner who had just received the devastating news that she was about to lose her ovaries and, with them, any future ability to create the genetic child she desperately desired. What pressure was there on him to agree to the use of his sperm to help Ms Evans? How real was the possibility for him to voice any doubts about this procedure or to refuse it? Or to add to Ms Evans' grief and anxiety by expressing any doubt regarding the stability of their relationship? Is this really sufficient to meet the requirement of the 1990 Act that the individual seeking infertility treatment services 'must be given a suitable opportunity to receive proper counselling' (schedule 3, para 3(1))? Or the HFEA Code of Practice, that '[c]entres should ensure that people do not feel under any pressure to give their consent' (para 7.5)? On the facts of this case, the robustness of the consent obtained from each party is surely open to question. The lack of space for confidential, private discussions between each party and Clinic staff on the one hand, and between the two parties themselves, on the other, makes for rather less than the quality of consent which might be thought desirable.

Finally, it should be noted that the 1990 Act's consent provisions give anonymous sperm donors as well as ex-partners the right to withdraw consent for use of embryos created from their gametes, until such time as those embryos are 'used' (Schedule 3, para 6(3)). The balance of ethical issues raised by this case might have appeared rather different if Ms Evans were to be denied her last chance of genetic motherhood because consent had been withdrawn by a man who had never met her, would never know whether a child created from his sperm had come into existence, and would not be liable for its financial support. (3) Whatever the importance of ongoing consent, some may find it difficult to accept that it should justify such harsh effects in these circumstances.

ii) Variation of Consent

It seems to me that Evans left unexplored one further interesting issue relating to consent: should we allow those whose gametes have been used to create embryos to downgrade their involvement from that of potential legal parents to that of mere gamete donors? After all, the 1990 Act allows donors the right not just to withdraw consent, but also to vary it (Schedule 3, para 4). What would have happened if Mr Johnston had agreed to allow Ms Evans to use the embryos, provided that he would not be recognised as any resulting child's father with the legal responsibilities that go with that status? There seems to be nothing in the 1990 Act itself to rule out such a possibility. Indeed, the High Court found that 'treatment together' and effective consent were analytically distinct, accepting the possibility that Mr Johnston continue to give effective consent to treatment, even when his relationship with Ms Evans had ended. Though not needing to devote much attention to such a possibility, given the facts before him, Wall J seemed to assume that, in such a situation, Mr Johnston would have been the legal father of any resulting children in line with his original consents, noting that he would 'presumably' owe child support liabilities towards them (Evans, HC at para 146).

Yet this conclusion is not obvious in the light of the Court of Appeal's decision in Re R (A Child) (IVF: Paternity of Child) [2003] EWCA 182. Re R involved a woman, D, who originally sought treatment services involving the use of donor semen together with her partner, B. When the couple separated, D continued the treatment with a new partner, S, without telling the clinic about the change in relationship, and relying on the formal consent previously supplied by B. The Court of Appeal was called upon to apply s. 28(3) of the 1990 Act:

[where] the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies … that man shall be treated as the father of the child.

The Court found that B could not be considered the legal father under s.28(3) and, as such, the child would be legally fatherless. S. 28(3) focuses on the act of placing the embryo in the mother, and this suggests that the question of whether that was done in the course of treatment services provided for her and a man together should be answered at that time and no other. As such, the Court reasoned, where a man who was neither the genetic father nor married to the mother had participated as the mother's partner during IVF provided for them together, but their relationship had ended by the time that the embryo had been placed within her, then that man could not be treated as the father of the child.

A hypothetical situation, which saw Mr Johnston seek to vary his consent to allow the embryos to be used in the treatment of Ms Evans alone, would be clearly distinguishable from Re R on a number of counts. On the other hand, the 1990 Act already accepts the possibility that genetic links need not inevitably result in legal relationships; and recognising such a possibility would fit with the priority accorded to the consent of the parties involved, providing fuller weight to their right to vary previous wishes. Such discussion must remain of mere academic interest, given that such a solution would appear not to have been acceptable to Mr Johnston. Nonetheless if Mr Johnston could have been persuaded otherwise, it might have provided some resolution to the current dilemma. The clinics involved would have had to be satisfied that what was proposed was not contrary to the 'welfare of the child', but is there any reason to suppose that it would be so? None of the reported facts in Evans would suggest that either Ms Evans is likely to be a bad mother. The 1990 Act already allows for the creation of legally fatherless children where a single woman makes use of anonymous donor sperm. And the Chair of the HFEA has recently joined those who have attacked the assumed need of a father as discriminating against lesbian couples and single women. (4) Clearly, Mr Johnston is unlike a sperm donor in that he would not be able to remain anonymous, yet this distinction is soon to be eroded in any case, with all children born of donated gametes gaining the legal right to trace their genetic parents. Would it be such a large step to allow the disassociation between known donors and their sperm, and to allow this particular kind of variation in consent once embryos have been formed?

2 The Welfare of the Child

Secondly, I would like to look a little more closely at the significance of the requirement under s.13(5) that clinics take account of the 'welfare of any child who may be born as a result of the treatment (including the need of that child for a father)' in the light of Evans. In addition to the general criticisms which have been made of s.13(5), (5) it seems to me that this case provides an important illustration of a further, very specific problem with it. Notably, it highlights a structural tension in clinics' roles in simultaneously providing embryo creation and storage as part of the care of a cancer sufferer, and policing who should have access to IVF, with due regard to this section. The HFEA Code of Practice distinguishes between various activities including: counselling, giving the information prescribed by the HFEA, giving information as part of the normal patient/clinician relationship, and the process of assessing people in order to decide whether to accept them for treatment (para 8.2). Yet in practice, how easy will it be to keep these activities separate? Crucially, there seems to be worryingly little space for either party to IVF to express doubts where these might be taken as a lack of confidence in the stability of the relationship and therefore grounds for refusal under s.13(5). A meeting with a health care professional who is the gatekeeper to the provision of a particular, desired service is hardly the most suitable arena for expressing any concerns that might result in that service being withheld.

This surely creates particular problems for women in Ms Evans' situation. A man with testicular cancer would most likely be offered the option of storing sperm for future use. This would be done as a means of preserving his procreative options for later life, with no need for prior enquiry into the stability (or existence) of a current relationship. Of course, biology here dictates that it makes no clinical sense for men and women to be treated in a formally equal way. Egg storage is at an early and experimental stage and, at the time of the hearings in Evans, had not resulted in a single successful pregnancy in the UK. It would therefore have little meaning as a routine treatment. Yet might not a woman in this situation be offered the possibility of saving some embryos created with donor sperm? We are told that if Ms Evans had pushed either for such a possibility or for egg storage that she would have been refused.

'[B]oth egg freezing and AID would have opened up the question of the durability of her relationship with Mr. Johnston. The alternative clinic would have been bound to enquire into why Ms Evans wanted egg freezing or to use donor sperm; and, despite her personal circumstances, might have felt unable to provide either when Ms Evans had a partner who was capable of providing the gametes to fertilise her embryos.' (HC, para 308).

But why should requesting storage of eggs or embryos created via donor insemination be taken as a lack of confidence in a current relationship liable to ring warning bells for the welfare of the child, rather than a sensible precaution based on the indisputable fact that even those relationships which we are quite convinced will last, very often do not? And where gametes are stored as insurance for the future, even if we are committed to preserving the requirement that the welfare of the future child be considered, why should this determination not be made at the time of implantation? After all, the consideration of child welfare is a condition of licences for treatment, and not for storage. (6) Ms Evans is forced by s.13(5) (or, at least, the Clinic's interpretation of it) into a position of reliance on Mr Johnston's continuing affections, a problem which men do not have to face. And as this case demonstrates all too clearly, the stakes for this reliance are very high.

CONCLUSION

The verdict in Evans was entirely predictable given the very clear wording of both the 1990 Act and the various consent forms signed at the time the embryos were created. Nonetheless, Evans may add further fuel to the growing consensus that some review of the 1990 Act is now timely. What questions should it add to any such review? In this commentary, I have suggested that Evans sheds light on problems in the foundations of each of the 'twin pillars' of the 1990 Act: consent and welfare.

The primacy which the 1990 Act accords to consent is fundamental to the determination of Evans, yet this case illustrates a number of problems with its operation. First, as has been seen above, the quality of the consent obtained here is poor. Secondly, surely Ms Evans has a point when she highlights the very constrained nature of consent envisaged by the 1990 Act, which involves highly structured choices made within the context of limited possibilities. Thirdly, if consent is so central here, is there not a moral case to allow the parties the chance to vary their consent so that the men concerned have the chance to provide their sperm as mere donors, rather than putative fathers? Finally, would those who believe that the 1990 Act produces a fair decision in Evans, feel the same way if it were a sperm donor, rather than a former partner, whose absolute right to withdraw consent before 'use' was denying Ms Evans her one remaining chance of the genetic child she so desires? Seen in this light, I would suggest that there are grounds for believing, somewhat paradoxically, that consent is accorded both too much significance in resolving the disputes which will inevitably arise in this area but also rather too little with regard to the circumstances in which it is obtained.

The Act's second 'twin pillar', concern for the welfare of the child, has already come under heavy criticism. As was noted above, the Chair of the HFEA has joined calls for s.13(5) to be reformed, albeit only to remove the requirement that clinics take account of the child's need for a father. What Evans adds to this critique is one further extremely poignant example of how this provision can harm women. Should women's ability to store their own genetic material in the most medically advantageous way really be dependent on being in a demonstrably stable relationship? If egg storage is not currently a medically viable option, then is there not an argument for women like Ms Evans to be offered the storage of some embryos created via donor sperm? Biology is not even-handed here, but that should not justify a law which exacerbates rather than mitigates its effects. And s.13(5), as currently interpreted by at least some clinics, would appear to do just that.

Wall J is clearly right in noting that: 'nobody can legislate for relationship breakdown, only for its consequences.' This begs the question of whether the current ways of providing for those consequences are the best ones. Here, I have suggested grounds for believing not. I would suggest that the major legal significance of the sad facts of Evans should be to give us pause for thought regarding whether the 'twin pillars' of consent and child welfare are fully able to support the weight of the regulatory edifice which the 1990 Act has built upon them.

Notes

(1) Natallie Evans v Amicus Healthcare Ltd [2003] EWHC 2161 (Fam), [2004] EWCA (Civ) 727. This short paper draws on the arguments made more fully in S. Sheldon, Evans v Amicus Healthcare, Hadley v Midland Fertility Services:Revealing Cracks in the 'Twin Pillars'? 16(4) Child & Family Law Quarterly (forthcoming 2004).

(2) See the Department of Health's press release of 20 January 2004, available at http://www.dh.gov.uk.

(3) One element of this distinction will be eroded for the future, given the impending removal of donor anonymity: Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004.

(4) J. Laurence, 'Fathers no Longer Required: Fertility Chief Signals IVF Revolution' Independent 21 January 2004.

(5) For a taste of the large literature critical of this provision, see E. Jackson (2002) 'Conception and the Irrelevance of the Welfare Principle' 65 MLR 176, S. Millns 'Making "Social Judgments that Go Beyond the Purely Medical": The Reproductive Revolution and Access to Fertility Treatment Services' in J. Bridgeman and S. Millns (eds) Law and Body Politics: Regulating the Female Body (Dartmouth 1995); and D. Steinberg Bodies in Glass: Genetics, Eugenics and Embryo Ethics (Manchester University Press, 1997).

(6) See ss. 13 and 14 of the 1990 Act.