Natallie Evansí Case: Some
Lessons for the Parliamentary Review of the Human Fertilisation
and Embryology Act (1990)?
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
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?
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,
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
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
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)  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
that man shall be treated as the father of
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
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.
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.
(1) Natallie Evans v Amicus
Healthcare Ltd  EWHC 2161 (Fam),  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