Deciding the fate of disputed embryos: ethical issues in the case of Natallie Evans.

Abstract

A number of disputes have arisen in recent years over the status of non-transferred embryos cryopreserved during in vitro fertilisation. One such case is that of Natallie Evans who in April 2007 lost her final attempt to prevent the destruction of embryos created with the sperm of her former partner. Ms Evans had been rendered infertile by cancer treatment, and the embryos represented her only chance of having genetically related children.
Arguments over stored embryos often conflate different concepts of parenthood. The effects of 'forcing' genetic parenthood on a man are mistakenly presented as being analogous with forcing women to bear children. Likewise, there is a tendency to assume that genetic parenthood necessarily involves legal, financial and psychological implications. Men (or women) who object to becoming parents should be encouraged to specify which aspects of parenthood they regard as being harmful. While the financial or physical burdens of forced parenthood involve objective harms, the putative psychological harms of enforced genetic parenthood are subjective, and this distinction should be recognised. Popular beliefs about genetic parenthood perpetuate the kinds of subjective concerns expressed by Ms Evans' partner, but the concept of genetic parenthood itself may come under pressure in the face of future technological developments.
Historical legal requirements obliging men to provide for their genetic offspring still pervade in the law. These perceptions are becoming outmoded in context of rapidly-moving reproductive technologies. To avoid disputes greater flexibility is required. The economic and legal components of parenthood should be negotiable in cases where disputes arise, and should not be assumed to flow inexorably from genetic paternity. To reduce the chances of disputes arising, consent protocols for cryopreservation of non-transferred embryos should be refined. Couples should address the possibility of divorce or the breakup of their relationships, and should be made aware that embryos can be destroyed at the behest of either party in these circumstances.

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Journal of Experimental & Clinical
Assisted Reproduction
Open Access
Debate
Deciding the fate of disputed embryos: ethical issues in the case of
Natallie Evans
Anna Smajdor*
Address: Medical Ethics Unit, Imperial College London, UK
Email: Anna Smajdor* - acsmajdor@yahoo.co.uk
* Corresponding author
Abstract
Background: A number of disputes have arisen in recent years over the status of non-transferred
embryos cryopreserved during in vitro fertilisation. One such case is that of Natallie Evans who in
April 2007 lost her final attempt to prevent the destruction of embryos created with the sperm of
her former partner. Ms Evans had been rendered infertile by cancer treatment, and the embryos
represented her only chance of having genetically related children.
Discussion: Arguments over stored embryos often conflate different concepts of parenthood.
The effects of 'forcing' genetic parenthood on a man are mistakenly presented as being analogous
with forcing women to bear children. Likewise, there is a tendency to assume that genetic
parenthood necessarily involves legal, financial and psychological implications. Men (or women)
who object to becoming parents should be encouraged to specify which aspects of parenthood they
regard as being harmful. While the financial or physical burdens of forced parenthood involve
objective harms, the putative psychological harms of enforced genetic parenthood are subjective,
and this distinction should be recognised. Popular beliefs about genetic parenthood perpetuate the
kinds of subjective concerns expressed by Ms Evans' partner, but the concept of genetic
parenthood itself may come under pressure in the face of future technological developments.
Summary: Historical legal requirements obliging men to provide for their genetic offspring still
pervade in the law. These perceptions are becoming outmoded in context of rapidly-moving
reproductive technologies. To avoid disputes greater flexibility is required. The economic and legal
components of parenthood should be negotiable in cases where disputes arise, and should not be
assumed to flow inexorably from genetic paternity. To reduce the chances of disputes arising,
consent protocols for cryopreservation of non-transferred embryos should be refined. Couples
should address the possibility of divorce or the breakup of their relationships, and should be made
aware that embryos can be destroyed at the behest of either party in these circumstances.
Background
On 10th April 2007, a British woman, Natallie Evans, lost
the final stage of a four year legal battle for the right to
implant embryos created with her eggs and the sperm of
her former partner[1]. Ms Evans had been diagnosed with
ovarian cancer, and had been told that her ovaries would
have to be removed in the course of treatment.
Published: 4 July 2007
Journal of Experimental & Clinical Assisted Reproduction 2007, 4:2
2
doi:10.1186/1743-1050-4-
Received: 20 June 2007
Accepted: 4 July 2007
This article is available from: http://www.jexpclinassistreprod.com/content/4/1/2
© 2007 Smajdor; licensee BioMed Central Ltd.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0),
which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Ms Evans' relationship with her partner Howard Johnston
subsequently broke down. Mr Johnston withdrew his con-
sent to the storage or use of the embryos created with his
sperm and Ms Evans' eggs. Since the consent of both par-
ties is required for fertility treatment or even for ongoing
storage of embryos, it seemed that Ms Evans would have
to forego her dream of parenthood. However, she was
unwilling to submit to the loss of her embryos without a
fight. She embarked on a protracted legal struggle which
culminated in the European Court of Human Rights'
rejection of her case[2].
The issues raised by the case were widely reported in the
media. Many people, while sympathetic to Ms Evans'
plight, felt that the court had come to the right conclu-
sion[3]. Clear consent protocols for the creation, storage
and use of embryos are set out in schedule 3 of the 1990
Human Fertilisation and Embryology Act (the HFE
Act)[4]. Both parties were made aware of the right of veto
when the embryos were created. But while in the eyes of
the law the correct decision may have been reached, the
case raises some interesting questions.
The implication of the court ruling was that people should
not be forced to become parents, other things being equal.
I suggest that this conclusion was based on a false analogy
that conflates genetic with gestational and other aspects of
parenthood. I also argue that legal and social expectations
are based on outmoded assumptions which no longer
make sense in the context of new scientific developments.
Finally, I query the adequacy of standard consent forms,
and suggest some ways in which patients and clinics could
minimise the danger of future recurrences of this kind of
impasse.
Discussion
The reasons for Ms Evans' failure to persuade the courts of
her right to use the embryos rested on the idea that it
would be wrong to force parenthood on a man who was
unwilling to accept or assume that role. But if this is really
so, we need to be sure of what is understood by parent-
hood. I suggest that parenthood is best understood not as
inhering solely in genetic ties. Rather, it is a bundle of con-
cepts which may include some or all of the following[5]:
• sharing genetic links
• undergoing gestation and childbirth
• being part of a causal chain that culminates in the birth
of a child
• having the intention to procreate
• acquiring legal and financial responsibilities
• nurturing and rearing
Some of these aspects of parenthood should not be forced
on unwilling people. But does this justify the outcome of
the Natallie Evans case? To answer this question, we must
examine the connections between those components of
parenthood which are objectively harmful, and establish
whether they are necessarily connected with the birth of
genetically-related offspring.
Genetic and gestational parenthood
Should we regard people as having a right not to be a par-
ent? And if so, does this imply that people should not
have genetic parenthood forced upon them? Margaret Bra-
zier has suggested that rights should be gender neutral[6].
If there is a right not to be a genetic parent it ought there-
fore to apply equally to both sexes.
In fact men's supposed rights not to become genetic par-
ents are routinely overridden. Once a woman is pregnant
it is widely accepted that her partner cannot force her to
undergo abortion. The unwilling father is simply obliged
to accept the woman's choice. The greater weight given to
the woman's choice demonstrates the importance we
place on deciding what is done to our own bodies. But
this does not necessarily spring from a right not to be a
parent. It is more plausible to understand it as a right to
self determination. This would fulfil Brazier's criterion of
being gender-neutral, since it can be applied equally to
men as well as women. However, it is not associated with
anything specific to parenthood.
These points may seem obvious, yet the conflation of
genetic and gestational parenthood was at the root of one
of the primary arguments used against Natallie Evans in
her first court case. Mr Justice Wall stated:
"If a man has testicular cancer and his sperm, preserved
prior to radical surgery which renders him permanently
infertile, is used to create embryos with his partner; and if
the couple have separated before the embryos are trans-
ferred into the woman, nobody would suggest that she
could not withdraw her consent to treatment and refuse to
have the embryos transferred into her. The statutory pro-
visions, like Convention Rights, apply to men and women
equally"[7].
Mr Justice Wall suggests that if Ms Evans had used the
embryos against her ex-partner's wishes, this would be
analogous with his forcibly implanting them in her body
against her will. Yet there is a hugely significant difference
between the two scenarios. The latter involves an enforced
implantation procedure followed by a coerced nine
month pregnancy and childbirth or a forced caesarean. In
the absence of consent, this would be regarded as a crim-

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inal assault. The former case involves no contact with the
body of Mr Johnston at all.
The analogy also fails to recognise that if a man in the sit-
uation described above wanted to procreate, he could
retain the possibility of doing so without imposing gesta-
tional parenthood on his unwilling ex-partner. That is, he
could find a surrogate. Whether the female ex partner in
such a situation could justify a complaint is precisely the
question at issue, but the example above fails to shed any
light on this.
Genetic and legal/financial parenthood
Arguably, a woman in the situation described by Mr Jus-
tice Wall would have fewer grounds for complaint than a
man. She would have no legal or financial responsibility
for the child. In this context, British law is oddly asymmet-
rical. A woman's genetic link with a child confers no auto-
matic parental responsibility by law, but a man's almost
invariably does.
This inequality is compounded by the fact that neither the
genetic nor the gestational mother of a child in the UK is
obliged to accept responsibility for its maintenance or
upbringing. A woman who gives birth to a child can relin-
quish any financial or legal responsibilities by choosing to
place it for adoption. But the genetic father is not permit-
ted to renounce his responsibility for the child in this way.
In this respect women's advantages over men extend far
beyond what can be justified solely by virtue of a physical
connection with the offspring[8].
The development of reproductive technologies has ena-
bled us to separate many of the biological components of
parenthood. However, our legal and conceptual frame-
works do not seem to have kept pace. Hence the assump-
tion that the genetic and gestational mothers must be the
same, and that genetic fatherhood is inextricably tied up
with legal and financial responsibilities. But since women
have the right to alienate legal parental ties to their off-
spring, perhaps we should extend the same courtesy to
men in some circumstances.
It would seem unjust both to overrule Mr Johnston's
wishes with regard to the implantation of the embryos and
to demand of him financial and legal responsibility for
the offspring. However, if a man in these circumstances
were able to revoke his legal responsibilities, in the way
that a sperm donor can, his grounds for complaint over
enforced genetic fatherhood would be far less obvious.
Comparisons with Davis v. Davis
It is interesting here to compare the Evans case with that
of Davis v. Davis in the US. The couple in question parted
and a dispute arose over embryos in storage[9]. As in the
Evans case, the embryos were eventually destroyed. The
negative consequences of forced fatherhood were
described, especially their financial and psychological
impact. In such cases, it was suggested, '... the party wish-
ing to avoid procreation should prevail'[10]. Similarly, Mr
Johnston's lawyer emphasised the psychological and
financial impact of unwanted genetic parenthood. If Ms
Evans had gone ahead against his wishes, Mr Johnston 'on
a biological and psychological basis [...] would be the
father of the child for whom he would have ongoing
moral, legal and financial responsibilities'[11].
The men – and the courts – in both these cases seemed to
assume that the financial burdens and the psychological
pressure of forced parenthood were inextricably linked
with the birth of a genetically-related child. However, this
is not necessarily the case since sperm donors do not have
financial obligations toward their offspring. If the possi-
bility of allowing Mr Johnston to revert his legal status to
that of a sperm donor had been addressed, a more thor-
ough analysis of any further objections would have been
possible. Specifically, the issue of psychological suffering
could be considered without being confused with the
question of financial responsibility.
Mr Johnston felt that simply by virtue of sharing some of
his genes, a child born to Ms Evans would impose a psy-
chological burden on him. Even if he could be legally
exempt from any financial or legal obligations, he
believed that the existence of a biological link conferred
an inalienable parental bond. Rather than submit himself
to such a bond, he preferred that the embryos which con-
tained his genes should be destroyed.
The gestational or financial components of parenthood
may cause obvious and objective harm when forced on
unwilling people. But psychological pain caused solely by
the existence of genetically-related children is far more
subjective. The fact that some people choose to donate
sperm or eggs demonstrates that not everyone feels the
same way about this. Any moral or psychological harm
involved solely in becoming a genetic parent is contingent
on the personal beliefs of the adult involved.
Clearly, Mr Johnston's beliefs made him strongly averse to
the prospect. But it is questionable how much credence
such a view should be given. Ms Evans had her own
equally subjective view about the value to her of genetic
parenthood. It may well be that both parties placed too
much weight on this account of parenthood and its impli-
cations.
Divisions of genetic parenthood
Genetic parenthood is widely perceived as a simple and
unassailable biological fact. This was at the root both of

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Mr Johnston's and Ms Evans' perceptions of the impor-
tance of controlling the disposal of embryos which con-
tained some of their genetic material. However, just as in
vitro technology has allowed for the separation of gesta-
tional and genetic motherhood, the integrity of genetic
parenthood itself may be challenged by further develop-
ments in reproductive technology[12].
Some women are known to have genetic abnormalities in
their mitochondrial DNA. These women may transmit
these abnormalities to their offspring, causing disease,
disability and sometimes death. It has been suggested that
this could be overcome by removing the nucleus from the
affected mother's fertilised egg and inserting it into an
empty egg cell donated by a woman whose mitochondrial
DNA is normal. The resulting child would be free of mito-
chondrial disease. ... but should either, or both of these
women be properly regarded as the genetic mother[13]?
Similar questions are raised by the prospect of in vitro
derived gametes. It has been suggested that, for example,
an enucleated egg could be injected with the nucleus of an
adult's skin cell[14,15]. The inner cell mass would then be
cultivated and embryonic stem cells derived. These could
then be differentiated into sperm or egg cells as required.
A child born from sperm and eggs derived in this way
could also inherit DNA from three individuals (mito-
chondrial DNA from the egg donors, and chromosomes
from two nucleus donors).
These possibilities reveal the complexity behind the
apparently simple truth that reproduction requires exactly
two genetic parents. Biological boundaries are more fluid
than we tend to imagine. Reproductive technology should
have taught us this. With the possibility of IVF and surro-
gacy, concepts that were thought to be simple biological
facts turned out to be far more complex. This is likely to
continue with further research, extending to the under-
standing of genetic parenthood. This fluidity needs to be
mirrored, as far as possible in the law and in people's per-
ceptions.
Changing perceptions of genetic parenthood is unlikely to
be an easy or quick process. However, there are a number
of lessons to be learnt from the case which may point the
way to improvements in avoiding such disputes, and to
dealing better with them when they do arise.
Improving the circumstances around obtaining consent
It has been pointed out that the quality of Ms Evans' and
Mr Johnston's initial consent was deeply flawed[16]. The
time allowed to the couple to make their decision was
limited, and they were understandably distressed at the
diagnosis of Ms Evans' condition. Mr Johnston may have
felt unwilling to add to Ms Evans' burdens by expressing
doubts as to the permanence of their relationship. Uncer-
tain of his own commitment, he may have felt that the
best option was to buy time with the creation of the
embryos: he knew he could always withdraw his consent later.
Clinics should be aware of the difficulties faced by couples
in this situation. In particular, offering separate consulta-
tions could be helpful. Where feasible, decisions should
not be taken at a time of additional stress. It is also impor-
tant that all the options available are considered. If Ms
Evans had frozen her eggs instead of creating embryos, the
subsequent problems could have been avoided. Some
clinics may hesitate to recommend egg freezing on
account of its low success rate. However, it should be
borne in mind that some women might prefer the risk of
unsuccessful treatment to the risk of being unable to use
embryos created with a partner's sperm. Another possibil-
ity would be to offer women in Ms Evans' circumstances
the chance to fertilise some of her eggs with donated
sperm. The essential thing is to try to ensure that both par-
ties have considered all the options that are open to them,
together with any associated risks and benefits.
Timing is also important. Ms Evans was advised to wait
two years before having the embryos implanted. During
this period, her relationship broke up. Had she implanted
the embryos immediately, Mr Johnston would not have
been able to thwart her parental endeavours. The advice to
wait was founded on clinical concerns. However, again
clinics need to be aware that a patient's social interests
may not necessarily tally with her best medical interests.
The implications of delaying implantation should be
addressed, and should be identified as a risk in the event
of a break-up.
In the UK, the Human Fertilisation and Embryology
Authority (HFEA) provides standard consent forms for the
creation and storage of embryos. Separate forms are pro-
vided for the man and woman. The forms require details
on how long embryos can be stored, and what should be
done with them if the individual dies or loses capacity.
However, no specific reference is made to the disposition
of embryos in the event of a relationship breakup.
Where couples are creating embryos together it would be
advisable to recognise that they are seeking treatment as a
couple. The issues facing couples are very different from
those facing single people, and their concerns cannot be
encompassed by consent forms that do not recognise the
potential for conflict. This need not mean that couples
have to reach unanimous decisions about the disposition
of their embryos. But they should specify what happens to
embryos in the event of a breakup as well as in the event
of death or incapacity, as in the current forms.

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Resolving disputes
However careful clinics and prospective parents are, they
cannot obviate every dispute. So when, despite all precau-
tions, conflicts arise, how should they be dealt with?
It has been argued that women should be regarded as hav-
ing a greater investment in the embryos. This might seem
justified in terms of the greater physical burdens that fer-
tility treatment imposes on them[17]. It could also reflect
the point made above: men's willingness to create
embryos may represent a more conditional step toward
parenthood than it does in women. Moreover, while
sperm can be frozen and used with little reduction in effi-
cacy, egg-freezing is much less likely to result in a succces-
ful birth. On almost every level, women in Ms Evans'
position are at a disadvantage relative to men.
Yet prioritising the female partner's stake in disputed
embryos would not necessarily improve outcomes for
women in general. Men might be more reluctant to create
embryos in the first place if their consent were taken to be
less than binding. And if women are understood to have a
greater interest in the disposal of embryos, this could be
seen as a reactionary move to emphasise women's role as
mothers over other interests they may have. (Neverthe-
less, an Israeli court has made a judgement based on this
perception of a woman's greater interest in being a
mother[18].)
If neither sex is to be systematically favoured, there seems
little option but to revert to the consent provisions. In the-
ory, this should prevent any unjust elevation of one per-
son's interests over the other. However, there is a strange
anomaly here. The consent of both parties is required for
the 'use' or ongoing storage of the embryos, yet they can
be destroyed with the consent of only one party. This
asymmetry has been severely criticised: " [s]urely if rights
were equal the law would be prevented from doing any-
thing with the embryos unless the parties were in agree-
ment"[19].
Seemingly, the parties' interests are not being given equal
consideration. Those who wish to become parents are sys-
tematically disadvantaged since they require two con-
sents, whereas those who want to avoid parenthood can
do so with ease simply by withdrawing their own consent.
There may be pragmatic reasons for the discrepancy. If
destruction were not the default option, embryos' legal
status would be indeterminate. Ongoing storage would be
unlawful and they could neither be used for fertility treat-
ment, nor destroyed, nor used in research. For this reason,
it is commonly assumed in such cases that destruction of
the embryos is an unfortunate necessity.
Since embryos can thus be destroyed on a unilateral basis,
this should surely be highlighted in the HFEA's standard
consent forms. However, it is not[20]. Nor is it stipulated
in the HFE Act itself. The fact that both parties' consent is
required for ongoing storage and for any use of embryos,
is simply taken to imply that destruction is the default
option in the event of a dispute. But patients signing such
a form cannot necessarily be expected to make this infer-
ence unaided. In the broader context of medical ethics, it
is generally accepted that if a patient consents to X, and X
entails Y, the patient cannot thereby be assumed to have
consented to Y unless specifically informed of this entail-
ment[21].
The vagueness in the law and in the consent forms is a
serious problem. Patients who are made aware that ongo-
ing consent of both parties is required for the use of their
embryos, may assume incorrectly that the same would be
required for their destruction.
Even if it is pragmatically justified and thoroughly under-
stood by both parties, the destruction of embryos as a
default measure may have very different consequences for
the individuals involved. Mr Johnston retained the option
of having genetically-related children at another time in
his life. For Ms Evans the embryos' destruction precluded
any chance of genetic parenthood. The reasoning behind
the requirement of consent from both parties is that their
interests have equal weight. But can this equality be
achieved when the destruction of embryos carries such
different implications for the parties involved, and can be
carried out at the behest of only one of their progenitors?
The ruling in Davis v. Davis left scope for a different out-
come if the disputed embryos represent one party's only
chance of having genetically-related offspring. Although
the wishes of the person who does not want to become a
parent should generally be paramount, this was based on
the assumption that 'the other party has a reasonable pos-
sibility of achieving parenthood by means other than use
of the embryos in question'[22].
If any circumstances might justify this kind of exception,
surely those of Ms Evans did. But in a context where the
genetic, financial, legal and moral conceptions of parent-
hood are so confused, it is perhaps unsurprising that the
compassionate response was not forthcoming. Legally,
the outcome was to be expected: Ms Evans could not dem-
onstrate that her rights had been violated.
The case of Ms Evans shows that even where there is the
technological ability to remedy infertility, social and legal
concerns may nevertheless override a woman's desire to
become a mother. This is an important consideration to
bear in mind: technology alone cannot solve problems

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which are bound up with social and legal proscriptions. It
is not always possible to foresee the social and legal com-
plexities that may arise from apparently benign tech-
niques.
Summary
This case raises questions about the nature of genetic par-
enthood, and what this entails in law. It also raises ques-
tions about popular perceptions of parenthood, and the
degree to which these are necessarily associated with
genetic parenthood as such. In legal terms, it may have
made sense in the pre-IVF era to focus on genetic ties in
order to establish parental responsibility. However, in a
world where the biological components of parenthood
have become fragmented[23] and where women and men
can earn broadly comparable salaries, it no longer makes
sense to base paternal responsibility solely on genetic cri-
teria[24].
Legal and social flexibility is required in order to accom-
modate the challenges of developments in reproductive
technology. This is unlikely to be resolved in the near
future. Therefore it is vital that consent procedures address
the possibility of relationship breakup, and inform cou-
ples of the fact that embryos will be destroyed in the event
of a dispute.
Competing interests
The author(s) declare that they have no competing inter-
ests.
Acknowledgements
Thanks to Mark Cutter for helpful advice and suggestions.
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22.
23.
24.