Denied the right to their babies?

Nick Morrison lookas at what happens when couples undergoing IVF treatment split up.

FOR Natallie Evans, it seemed her only chance of becoming a mother. Before undergoing treatment for ovarian cancer which would leave her infertile, she sought the services of an IVF clinic. There, six embryos were frozen, combining her eggs with her boyfriend's sperm, ready for use following the chemotherapy.

But the relationship with her boyfriend, Howard Johnston, foundered, the couple separated, and Mr Johnston asked for the eggs to be destroyed, leaving Natallie, now 30, heartbroken.

Lorraine Hadley turned to IVF to overcome fertility problems caused by a medical condition, which left her unable to become pregnant naturally. The 37-year-old, who has a 17-year-old daughter from a previous relationship, created two embryos with her husband Wayne, which were put into storage. Again, the relationship ended, and Wayne decided he did not want to have a child with his former wife.

For both women, the frozen embryos represented their only chance to have a child naturally, and were their former partners' wishes to be upheld, it would deny them the right to have a child. For both Natallie and Lorraine it was a situation which had come about entirely through the involvement of IVF. Had they fallen pregnant naturally, and then split up with their partners, the men would have had no say in whether the pregnancies continued.

But yesterday this argument was dismissed by the High Court, which rejected the women's challenge to the law that states both parties must agree to the use of embryos at every stage of the IVF process. The court ruled that both sets of embryos should be destroyed - although not until the appeals process has been exhausted.

The court's decision came as no surprise to Dr Kamal Ahuja, medical director of the Cromwell IVF group, which has centres at the Woodlands Hospital in Darlington and Washington Hospital. Although he has sympathy for the women's plight, he says consent is a fundamental principle in any treatment involving IVF.

"Whichever way the judge ruled, it was going to be a difficult decision," he says. "You have to balance the interests of the woman who is seeking treatment, and who has no other way to achieve a pregnancy, and the man, who has the right to withdraw consent.

"At any stage in the procedure, either party can change their mind, and that is the end of it. I feel sorry for the women involved, but under the circumstances this is the best decision the judge could have made."

He says there are still options for the two women involved to have another child, involving donor eggs, which mean their prospects of motherhood have not been dashed completely. And guidelines published by the National Institute for Clinical Excellence (NICE) earlier this summer recommended widening access to IVF, although whether either woman would qualify under the new guidelines is still unclear.

Dr Ahuja says the key to understanding the difference between an IVF conception and a natural conception, where the man would have no say over whether the pregnancy is continued, lies in the accepted view of when life begins. Whereas Natallie and Lorraine may have argued that life begins at conception, so the embryos should not be allowed to perish if one parent wants them to live, the law in this country states that life begins at implantation, a view which has become widely accepted. To have allowed the two women's challenge, would have been to overturn this principle.

A belief that life begins at fertilisation creates difficulties when an embryo subsequently divides, resulting in twins, triplets or other multiple births. "If we were to consider that life begins at fertilisation, are we suggesting there is a divided soul?", Dr Ahuja says.

"These arguments are interesting in their own right, but you have to have a working model in life. Whether you drive on the right hand side of the road or the left, they're both equally good, but wherever you live, you have to adhere to a system, otherwise there will be chaos."

The women's lawyers argued that the 1990 Human Fertilisation and Embryology Act, which says embryos cannot be implanted unless both parties have given their permission, breached the women's human rights, and that while the destruction of the embryos would prevent the women from having a baby naturally, both of the men involved were free to have children with new partners.

But Dr Michael Wilks, chairman of the BMA ethics committee, says changing the rules on consent retrospectively would be a dangerous step. He says consent is given on the basis that it can be withdrawn at any time up until implantation, and that the couples agreed that the embryos could only be used if both parties agreed.

The Families Need Fathers group, which campaigns for the rights of fathers, applauded the court's decision, even though the effects on the women involved are devastating. Spokesman Ian Mackay says to bring a baby into the world when one parent opposes its birth would be almost unbearable.

"It is tragic for the women that they will never have the chance to have children of their own, but I think it is a sensible decision in a very difficult case. We're all aware of the sadness children have when they're denied contact with one or other parent, and for a child to be brought up with the knowledge that their father didn't want them would be an enormous emotional burden," he says.

If the embryos had been implanted, the situation would have been different. The courts have already ruled that fathers do not have the right to demand a pregnancy is terminated, but in an un-implanted state, both parties have equal rights over the embryo.

"There is a difference between invasive surgery on the mother because the father wants it, or when you can make a decision without affecting the mother's body," Mr Mackay says.

In some ways, the High Court's decision upholds the status quo. Clinics will still need the consent of both parties at each stage of the IVF process. But what yesterday's ruling will do is emphasise the importance of considering what will happen to any embryos should a couple split. No longer will this be an issue to be avoided on the assumption that the couple will not part - for those undergoing IVF, a pre-implantation agreement may become just another part of the process.