The Independent

A father's role is more than just conceiving a child

Women must stop assuming that fathers are sperm providers whose children don't need them

By Deborah Orr
The Independent
27 August 2002

Despite warnings that seem to have grown to a cacophony – of dashed hopes of conception, of multiple pregnancies and lost babies, of fractured relationships or damaged mental health, or of money poured down the drain – the belief of women in the panacea of assisted reproduction still seems strong.

It is so strong, in fact, that sometimes women appear to view science and technology, rather than men and sperm, as the co-parents of the children they would like to be certain one day of having. In the case of Natallie Evans, such a mindset, no doubt fostered by the industry itself, has resulted in a heart-rending situation.

When 30-year-old Ms Evans was diagnosed as having ovarian cancer, she approached a fertility clinic with her 25-year-old boyfriend, Howard Johnston, and paid £3,000 to have 11 of her eggs fertilised with his sperm. Six resulting embryos were frozen, and Ms Evans underwent the cancer treatment which meant that she would not be able to conceive again, even using IVF.

She and Mr Johnston have since split up, although this eventuality did not lead Ms Evans to discount, or at all reconsider, the idea that she would later bear his children. Mr Johnston had other ideas though, firm ideas that were communicated to Ms Evans in the form of a one-paragraph letter from the clinic which held the embryos, informing her that her former partner wanted them destroyed.

Ms Evans was dumbfounded to learn that the father of these possible children had anything whatever to do with their future existence, and claims that the clinic – the Bath Assisted Conception Clinic in Somerset – did not initially inform her properly of the implications of what she was doing, or explainthat the embryos had to be destroyed if either partner withdrew consent.

Ms Evans and another women, Lorraine Hadley, who finds herself in a similar situation and is represented by the same lawyer, have gone to court to try to save the embryos. The legal argument, citing the Human Rights Act, is that Ms Evans and Ms Hadley are being discriminated against because they are infertile. Were the two women fertile, with the embryos in their bodies rather than in freezers, the fathers would have no right at all to intervene to end their existence. Because the women are not being given the same right to choose that a pregnant woman has, discrimination is occurring.

Such an argument seems spurious to me. It is because the women are infertile that they are in this situation. It is surely their infertility that is the major bar to motherhood here, rather than any discrimination, or any abuse of their human rights. A growing embryo in a womb is not the same as a frozen embryo in a clinic.

What the women want is the right to have babies with a partner they selected in the past, at some point in the future. In order, during the passage of that time, that their plans are not interfered with by changes in their ex-partner's life circumstances, they want the law to regard them as pregnant for all the years from conception to birth. In other words, the women are arguing that their infertility should confer on them a special sort of timeless theoretical fecundity.

Would this mean that any infertile woman who has a frozen embryo stored somewhere can be regarded as legally pregnant? The law, so far, has not attempted to answer these questions. Nevertheless, Ms Evans has had some success with the first round of her legal battle. The embryos, a court has ruled, should not be destroyed until Ms Evans has met with Mr Johnston to discuss the matter. Perhaps Ms Evans can persuade Mr Johnston to consider himself a donor rather than a father, for her sake.

This would certainly be considered an act of generosity towards Ms Evans, with whom, in this situation, most people's sympathy would lie. After all, more counselling of both parties before the assisted reproduction commenced might have resulted in Ms Evans opting for donor sperm anyway.

A change of heart from her ex-partner would be the best possible outcome for Ms Evans, if not for Mr Johnston or even for his unwanted child. But for people in the future who might find themselves in a similar situation to Ms Evans, the best outcome would not be a change in the law regarding paternal consent, but a wider understanding of the need for consent, and a stronger incentive for clinics to make sure their clients understand that need.

It might be imagined that in this country, after years of publicity surrounding the Diane Blood case, the need for paternal consent is widely known. It was back in 1996 that the human fertilisation and Embryology authority ruled that Diane Blood could not be made pregnant by the use of her dead husband's sperm because he had not given written consent for its donation (he was in a coma when it was taken) or for its future use.

At the time of this ruling, there was a huge outcry against the HFEA, which was accused of being inhumane and inflexible. Even a man married for some years to his childhood sweetheart, known widely among friends and family to have been planning a family, but instead struck down with meningitis at the age of 30, was judged in this country not to be a legitimate sperm donor because he had not given consent. One would like to think that the one useful thing this extraordinary case might have done would be to make the situation clear.

But instead, if anything, the Diane Blood case appears to have led women to assume that paternal consent is not needed. Mrs Blood, did of course have her dead husband's son, and is expecting another child by him. But this only came about because the appeal court ruled that the HFEA had been wrong to deny Mrs Blood an export licence for her husband's frozen sperm, since European law guarantees all of its citizens the right to received medical services in another member state.

In other words, it was a loophole in European law that gave Mrs Blood what she craved, rather than the letter of British law. Since that landmark case, around 40 other British women are reported to have followed in Ms Blood's footsteps. All those children with fathers dead at the time of their conception. There may be plenty of romance in this idea of undying love, but there is not much positive to be learned about how important the role of a living, breathing father is or ought to be.

Ms Evans and Ms Hadley are now seeking the same sort of thing. But while I hope very much that they can come to some sort of understanding with their ex-partners, I hope as well that these cases will serve to publicise and sharpen the law, rather than change it.

The awful circumstances under which Ms Evans opted for frozen embryos – and under which young Mr Johnston initially agreed to donate his sperm – should not distract us from the real issues. Children cannot be brought into the world because their unwilling fathers made emotive decisions in the past that they lived to regret. Clinics must be put under pressure to make sure that their clients understand this. And women must stop running around with the idea that fathers are sperm providers, whose children don't need them, and whose job is over at conception. We should be discouraging woman and men from thinking in that sad and bankrupt way, not doing our damndest to have it enshrined in our laws.

2002 Independent Digital (UK) Ltd