Evans v. U.K.- To Procreate or not Procreate: Which Right is Greater?

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1 Mills College From the SelectedWorks of Gabe Pimentel Pimentel March 10, 2008 Evans v. U.K.- To Procreate or not Procreate: Which Right is Greater? Gabe Pimentel Pimentel Available at:

2 EVANS v. UNITED KINGDON, TO PROCREATE OR NOT TO PROCREATE: WHICH RIGHT IS GREATER? I. INTRODUCTION GABRIEL J. PIMENTEL In vitro fertilization has revolutionized human reproduction while raising profound moral and legal issues in the process. As fertilization techniques are refined and the procedure becomes more accessible, disputes among the participants to in vitro fertilization (IVF) procedures will increase in frequency, and courts all over the world will be summoned to play the role of legal and moral arbiter as they wrestle with determining how to fairly resolve these disputes. When a court of law is faced with resolving a dispute between the parties to an IVF procedure, it will inevitably be forced to weigh one party s interest against the others. But what happens when one party s interest is to procreate, and the other s is to refrain from doing the same? Which interest should prevail, and is a court of law in the best position to decide who s fundamental right is more, well, fundamental? 1 This note examines both the moral and legal issues raised when one party to an IVF procedure no longer wishes to participate in the process, and withdraws consent, while the other party wishes to proceed as planned. Surprisingly, disputes like this are not all that uncommon. 2 The European Court of Human Right s (ECHR) decision in Evans v. United Kingdom 3 sent shockwaves throughout the European community in April 2007 when it decided this very issue. 1 The term fundamental right in this context does not necessarily refer to the United States Supreme Court s meaning of the phrase as interpreted through substantive due process. 2 See J.B v. M.B, 783 A.2d 707 (N.J. Sup. 2001); In Re Marriage of Arthur Lee, 672 N.W.2d 768 (Iowa Sup. 2003); A.Z. v. B.Z., 431 Mass. 150 (2000); Kass v. Kass, 235 A.D.2d 150 (N.Y. 1997); Davis v. Davis, LEXIS 642, (Tenn. 1990) (Cases in which parties to an in vitro fertilization procedure dispute over the disposition of the embryos) /05 Eur. Ct. H.R. 1 (2007).

3 The Court held that a woman s right to have children did not outweigh a man s right to forbear from doing the same. 4 The Evans decision illustrates a common sense approach to dealing with an otherwise complex and controversial issue, and provides a framework in an undeveloped area of law from which other countries can draw upon for guidance. Part I of this note will provide a general background of the IVF process, summarize the facts of the Evans case, and explain the applicable rules of law that were at issue in the ECHR s decision. The data provided in part I will place particular emphasis on the U.K., as it has long been at the forefront of IVF, and serves as a model for the rest of the world. Part II of the note will provide an objective analysis of the Court s decision, and evaluate whether it correctly applied the Human Fertilization and Embryology Act 1990 (HFEA), a statute that governs IVF disputes in the U.K., to the case at hand. Part II will also examine the moral, legal, and ethical arguments in favor of the party seeking IVF and the party opposing it. Part III of the note will make a recommendation that the entire European community as well as the United States follow the ECHR s approach in resolving disputes among IVF participants, and pass a statute that would allow any party to an IVF procedure to withdraw his or her consent at any time prior to implantation of the embryo. In recommending the passage of this statute, I will examine the various constitutional issues that would result if the U.S. were to enact a statute similar to the HFEA. Some of those issues include whether a constitutional right not to procreate even exists, whether the passage of a statute that restricts a person s ability to implant embryos in an IVF procedure would infringe upon that person s constitutional right to procreate, 5 and finally, 4 Id. 5 See Skinner v. Oklahoma, 316 U.S. 535 (1942) (Holding that marriage and procreation are basic human rights).

4 assuming that the statute would infringe upon that right, whether one s right not to procreate would be accorded more weight when the two conflict. This note concludes that the ECHR was correct in endorsing a bright-lined rule that allows any party to an IVF procedure to withdraw his or her consent up until the point of implantation because it produces legal certainty, and prevents unfair and arbitrary results in an area of law that gives rise to very sensitive and moral issues. Finally, the note concludes that there is a right to refrain from procreating, that right undoubtedly outweighs any countervailing right to procreate, and that a law facilitating an enforcement of that right would be consistent with the U.S. Constitution. II. BACKGROUND A. The In Vitro Fertilization Process In vitro fertilization is the process of extracting a woman s eggs from her ovaries, fertilizing them in a petri dish, and transferring the resulting embryos into her uterus through the cervix. 6 Prior to extracting the woman s eggs, the woman is injected with hormones so as to produce multiple eggs each month instead of one. 7 The timing of the extraction process is vital, as the eggs must be retrieved just before they emerge from the follicles in the ovaries. 8 If the eggs are taken out too early or too late, they will not develop normally. 9 During the procedure, 6 CTR. FOR DISEASE CONTROL, ASSISTED REPRODUCTIVE TECH. SUCCESS RATES 3 (2004), available at Publications/art/2004ART508.pdf. 7 Charlotte Mathis, A Couples Guide: Trying to Conceive, WEB M.D., Nov. 7, 2007, infertility -and-reproduction/guide/in_vitro_fertilization. 8 Id. 9 Id.

5 the doctor removes the eggs with a hollow needle, and immediately mixes them in a petri dish with the other party s sperm. 10 The entire process usually takes between thirty minutes to an hour, and has an average cost of $12,400 in the U.S, 11 and between 4,000-8,000 in the U.K. 12 Once fertilized, the resulting embryos are allowed to develop for up to five days before they are implanted into the woman s uterus. 13 In order to increase the chances of pregnancy, the doctor usually implants three to four embryos at a time. 14 However, this also increases the woman s health risks, as the chances for a multiple pregnancy are increased as well. 15 Any embryos that are not used in the first IVF attempt can be preserved by slowly freezing them to -196 Celsius in a cryoprotectant fluid, and storing them in containers of liquid nitrogen. 16 Freezing any excess embryos is very common, as it gives the couple the advantage of attempting to conceive in the future without having to undergo the costs and pains caused by subsequent extraction processes. B. Infertility & In Vitro Fertilization Success Rates The need for IVF in the U.K. and U.S. has arisen due to the surprisingly high number of infertile men and women. It is estimated that one in seven U.K. couples have difficulty conceiving - approximately 3.5 million people. 17 Likewise, approximately one out of every six 10 Id. at Id. 12 Human Fertilization and Embryology Auth., (last visited Nov. 9, 2007). 13 Id. 14 Id. 15 Id. 16 IVF.Com, (last visited Nov. 7, 2007). 17 Human Fertilization and Embryology Auth., supra, note 11.

6 couples in the U.S. is infertile. 18 It is no wonder that IVF procedures have become so common among both the U.K. and U.S. 19 In the U.S., an infertility diagnosis is given to a couple who is unsuccessful with their attempts to conceive over the course of one year, 20 whereas a couple in the U.K. must attempt to conceive for two years before they are deemed infertile. 21 The number of IVF clinics in the U.K. and U.S. has exploded, with eighty-five licensed IVF clinics currently running in the U.K., 22 and 461 in the U.S. 23 These IVF clinics have produced over 65,000 successful births in the U.K. from 1991 to 2004, 24 and over 200,000 in the U.S. since The chance of having a successful birth from an IVF procedure depends largely on the age of the woman. In the U.K., the current live birth rate resulting from an IVF procedure for a woman under 35 is about 28%. 26 This figure decreases sharply to about 10% for British women between the ages of 40-42, and drops down to about 1% for women over age Similarly, the success rate for IVF procedures in the U.S. is approximately 34% for women 18 Female Infertility, AMERICAN PREGNANCY ASSOCIATION, June 2007, femaleinfertility.html 19 Over 30,800 U.K. patients and over 120,000 U.S. patients underwent the IVF procedure in 2004; see Human Fertilization and Embryology Auth., supra note 15; CTR. FOR DISEASE CONTROL, supra note 5, at 22, Female Infertility, supra, note Human Fertilization and Embryology Auth., supra, note See supra, note CTR. FOR DISEASE CONTROL, supra note 5, at Human Fertilization and Embryology Auth., (last visited Nov. 7, 2007). 25 Mathis, supra note Human Fertilization and Embryology Auth., supra note See supra note 20.

7 age 30, and about 15% for women age While refined techniques and increased experience of doctors has steadily increased the success of IVF procedures, 29 there are certainly no guarantees that the process will yield any results. However, as long as the IVF process gives infertile couples even the slightest chance at bearing a child, it will continue to be a viable option for those hoping to conceive. C. Evans v. United Kingdom The Evans controversy began in July 2000 when Natalie Evans, a thirty-four year old British National started fertility treatment at the Bath Assisted Conception Clinic with her partner Howard Johnston. 30 During an October 10, 2000 appointment with the clinic, Ms. Evans was diagnosed with a pre-cancerous condition of her ovaries, and was advised that they would have to be removed. 31 However, the clinic informed the couple that it would be possible to save some of her eggs for IVF before her ovaries were to be removed. 32 Realizing that she would never be capable of conceiving children of her own without undergoing the recommended procedure, Ms. Evans agreed to the removal of her eggs for IVF. 33 The clinic then explained to both Ms. Evans and Mr. Johnston that they would have to sign a consent form to the IVF treatment, and that in accordance with the HFEA, either party would be allowed to withdraw his 28 Mathis, supra note 6, at See supra notes 6, Embryo has no Right to Life, THE TIMES (LONDON), Mar. 17, 2006, at 74, available at lawschoolreg/researchlogin04.asp?fac=no. 31 Evans v. United Kingdom, 6339/05 Eur. Ct. H.R. 1 (2007). 32 Id. 33 Id.

8 or her consent at any time prior to the implantation of the embryos in Ms. Evan s uterus. 34 Concerned with the possibility of a break-up with Mr. Johnston, Ms. Evans inquired into the possibility of freezing her eggs unfertilized rather than fertilized. 35 The clinic informed her that freezing the eggs while unfertilized had a much lower chance of success, 36 and that the clinic did not perform that type of procedure anyway. 37 Mr. Johnston then reassured Ms. Evans that they would not split up, that she did not need to consider freezing the eggs while unfertilized, and that she should not be negative, as he wanted to be the father of her child. 38 Content with his reassurances, Ms. Evans signed the necessary consent forms along with Mr. Johnston. 39 In November 2001, the clinic extracted and fertilized eleven of Ms. Evan s eggs, resulting in six embryos which were subsequently frozen for storage. 40 Ms. Evans underwent a successful operation to remove her ovaries, and was informed by the clinic that she should wait two years before attempting to implant the embryos. 41 However, in a starling turn of events, the relationship between the couple broke down, and in July 2002, Mr. Johnston wrote a letter to the clinic which stated that the embryos should be destroyed, thereby revoking his consent to the 34 Id. 35 Id. 36 The success rate among patients who have attempted IVF through freezing unfertilized eggs is approximately 10-15%. Only 4 babies have been born to date in the U.K. utilizing this method of IVF; see Human Fertilization and Embryology Auth., (last visited Nov. 9, 2007). 37 Evans, 6339/05 Eur. Ct. H.R. at Id. 39 Id. 40 Id. 41 Id.

9 IVF procedure. 42 The clinic then notified Ms. Evans of Mr. Johnston s lack of consent to use the embryos, stating that it was obliged to destroy the embryos pursuant to paragraph 8(2) of schedule 3 to the HFEA. 43 The Act provides in pertinent part that, An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo Unhappy with the clinic s decision, Ms. Evans brought proceedings seeking an injunction requiring Mr. Johnston to restore his consent to the use and storage of the embryos, and a declaration that he could not vary his earlier consent. 44 Ms. Evans claimed that the HFEA, which required the embryos to be destroyed following Mr. Johnston s withdrawal of consent violated not only the embryo s right to life pursuant to article 2 of the Convention for Protection of Human Rights and Fundamental Freedoms (Convention), but also her right to respect for private and family life pursuant to article 8 of the Convention. 45 The claims were dismissed, 46 with the decision being upheld on appeal. 47 The ECHR heard the case and ruled unanimously that an embryo did not have independent rights or interests, and as a result, could not have claimed on its behalf a right to life under article 2. The Court also ruled by a thirteen to four vote that, although the consent provision contained in the HFEA facilitated an interference with Ms. Evan s right to respect for 42 Id. 43 Id. 44 Id. 45 Id. 46 Evans v. Amicus Healthcare Ltd [2003] 4 All ER [2004] 3 All ER 1025.

10 private life, specifically, her right to procreate, Mr. Johnston s right to refrain from procreating outweighed that right. 48 D. The Convention for Protection of Human Rights and Fundamental Freedoms The Convention for the Protection of Human Rights and Fundamental Freedoms is considered by many to be the most successful human rights instrument in the world. 49 It was entered into force in 1953 by the Council of Europe, a forty-seven-member organization of European states. 50 The Council of Europe was created in order to promote civil and political rights and freedoms in Europe. 51 Countries seeking to join the Council of Europe must ratify and adhere to the Convention as a condition to membership. 52 In 1959, the Council of Europe created the ECHR as a mechanism for enforcing the rights enumerated in the Convention. 53 All members of the Council of Europe must abide by any final judgments of the Court in any case to which they are parties pursuant to article 46, paragraph 1 of the Convention. Any private individual or legal entity may lodge a complaint with the ECHR as long as the alleged violation was committed by one of the member states bound by the Convention. 54 Thus, if an individual alleges 48 Evans, Eur. Ct. H.R. at BRICE DICKSON, HUMAN RIGHTS AND THE EUROPEAN CONVENTION 1 (Brice Dickson ed., Sweet & Maxwell 1997). 50 Council of Europe, (last visited Nov. 9, 2007). 51 Council of Europe, (last visited Nov. 9, 2007). 52 DICKSON, supra, note 46, at Council of Europe, supra, note Council of Europe, Frequently +asked + questions/ (last visited Nov. 10, 2007).

11 that a law of a member state violates his or her protected rights under the Convention, the ECHR has the power to strike it down. Many of the enumerated rights in the Convention are similar to those found in the U.S. Constitution. Some of those rights include the right to life, right against inhumane and degrading treatment, right against slavery and involuntary servitude, right to liberty and security of person, right to a fair trial, right to respect for private and family life, freedom of religion and expression. 55 Indeed, the Convention is similar to the U.S. Constitution in form and substance. 56 E. The Warnock Report & the Human Fertilization and Embryology Act 1990 England has long been at the forefront of IVF technology. In 1978, Dr. s Patrick Steptoe and Robert Edwards of England successfully implanted an embryo through IVF, resulting in the birth of the first ever child through IVF, Louise Brown. 57 In the wake of the first birth through IVF, the British government commissioned the Committee of Inquiry into Human Fertilization and Embryology in Chaired by Baroness Warnock, the Committee s primary purpose was to inquire into the social, ethical, and legal implications of recent and potential developments in the field of human assisted reproduction. 59 Written and oral evidence was received from hundreds of interested individuals and organizations, including members of the 55 See Convention for the Protection of Human Rights and Fundamental Freedoms, art. 2-6, 8-10, Sept. 3, See U.S. CONST. amend. s I, IV, VI, VIII, XIII, and XIV. 57 About.com: 20 th Century History, htm (last visited Nov. 10, 2007). 58 HOUSE OF COMMONS, SCIENCE AND TECHNOLOGY, FIFTH REPORT 1 (2007), cm200607/cmselect/cmsctech/272/27205.htm. 59 Bopcris, Unlocking Government Publications Key British, (last visited Nov. 10, 2007).

12 medical profession, family planning and fertility services, religious groups, parent s organizations, community health councils, medical research councils and health authorities. 60 The findings spawned a 1984 report from the Committee, commonly known as the Warnock Report. 61 Based upon the findings of the Warnock Report, the U.K. passed the Human Fertilization and Embryology Act The HFEA is a British statute that regulates three aspects of assisted reproduction: the creation or use of embryos outside the body, the use of donated eggs or sperm in treatment, and the storage of embryos, sperm or eggs. 63 One of the most important and relevant sections of the HFEA to this case is the consent provision, which allows any party to an IVF procedure to revoke his or her consent at any time prior to implantation. 64 III. CASE ANALYSIS: WHOSE RIGHT IS MORE FUNDAMENTAL? A. The ECHR s Reasoning When two fundamental human rights collide, one right must invariably submit to the other. In ruling that a person s right to refrain from procreating outweighed the right to procreate, the ECHR relied on public policy and legal certainty in order to justify its ruling. 65 The Court refused, as a matter of public policy, to create a rule of law, as Ms. Evans proposed, that would force a person to become a parent against his or her will. It also sought to avoid problems of 60 See supra, note See generally HOUSE OF COMMONS, supra, note See supra, at note Supra, note 57, Human Fertilization and Embryology Act 1990, Sch. 3, 4, Evans v. United Kingdom, 6339/05 Eur. Ct. H.R. 2 (2007).

13 arbitrariness and inconsistency inherent in weighing, on a case by case basis, entirely incommensurable interests. 66 In addition to European and U.S. case law, the ECHR looked to the findings of the Warnock Report in deciding whether the HFEA s consent provision, which allows for any party to revoke his or her consent prior to implantation, violated the Convention. 67 The Court found that respect for human dignity and free will, as well as a desire to ensure a fair balance between parties to an IVF procedure was the policy behind the Warnock Report s recommendation to enact provisions barring exceptions that would allow donors to withdraw consent. 68 The Court concluded that these policies were consistent with the Convention. 69 B. Legal Support for the ECHR s Decision The ECHR was correct in holding that the HFEA did not violate the embryo s right to life or Ms. Evan s right to respect for private and family life. Not only does the European and U.S. case law support this ruling, but public policy does as well. As we will see, the limited numbers of authorities that address this issue are almost unanimously in favor of a rule similar to that announced by the ECHR. Additionally, it is simply morally repugnant and contrary to the values of free societies to force procreation upon unwilling persons. The social, ethical, and legal ramifications of tolerating such a result are far too great to allow. Although few cases squarely address the issue before us, the ones that do tend to lend support to the party opposing procreation. In Davis v. Davis, 70 the Tennessee Supreme Court 66 Id. 67 Id. at Id. 69 Id. 70 LEXIS 642 (Tenn. App. 1990).

14 addressed a dispute between a husband and wife during a divorce proceeding involving the disposition of pre-embryos 71 produced through IVF. The wife sought to implant the pre-embryos against the husband s wishes. 72 The Court ruled that allowing the wife to implant the preembryos against her husband s wishes would constitute impermissible state action in violation of his constitutionally protected right not to beget a child where no pregnancy had taken place. 73 The Court stated that the relative interest of both parties should be weighed, and that ordinarily the person wishing to avoid procreation should prevail. Finding no compelling state interest to justify an order to implant the pre-embryos against the husband s will, the Court ruled in favor of the husband. 74 The Court faced a similar issue in Kass v. Kass 75 when a married couple signed a consent agreement with a fertilization clinic which stipulated that, in the event that we are unable to make a decision regarding the disposition of our frozen pre-zygotes, the embryos would be awarded to clinic for research. 76 When the couple separated, Mrs. Kass sought to void the agreement and proceed with the implantation. 77 The court ruled that although the wife had a fundamental right to procreate, the husband had a countervailing fundamental right to avoid 71 A pre-embryo is a fertilized egg that is less than 14 days old. 72 Id. at Id. at Id A.D.2d 150 (N.Y. App. Div. 1997). 76 Id. at Id. at 152.

15 procreation. 78 Although the Court ruled in favor of the husband, the controlling factor was the existence of the consent form that controlled the disposition of the pre-embryos. 79 Similar to Kass, A.Z. v. B.Z. 80 involved a previous written agreement between a husband and wife undergoing IVF. 81 The agreement stated that in the event of separation, the embryos would be given to the wife, who now wished to continue with the treatment against the husband s wishes. 82 The Supreme Court of Massachusetts ruled that the agreement should not be enforced because as a matter of public policy, forced procreation is not an area amenable to judicial enforcement. Rather, freedom of personal choice in matters of marriage and family life should prevail. 83 Finding the contract as contrary to public policy, the Court ruled in favor of the husband. 84 The above case was expressly endorsed by the Court in J.B. v. M.B. 85 However, this time it was the wife who sought destruction of the embryos, while the husband wanted them to be donated to another couple or preserved for use by him with a future partner. 86 His primary concern was his religious belief against destroying human life, which conflicted with the 78 See generally Kass, 235 A.D.2d. 79 Id N.E.2d (Mass. Sup. 2000). 81 Id. 82 Id. 83 Id. 84 Id A.2d 707 (N.J. Sup. Ct. 2001). 86 Id.

16 destruction of the embryos. 87 According to the husband, he and his wife made an agreement prior to commencing the IVF process that any extra embryos would be donated to infertile couples. 88 However, the Court disregarded the purported agreement between the husband and wife concerning the disposition of the embryos, stating that a contract forcing a party to become a parent against his or her will is contrary to public policy and unenforceable. 89 The Court avoided the wife s argument that forcing her to become a parent against her will would violate her right to avoid procreating. 90 Instead, the Court disposed of the case by ruling that the contract between the clinic and the couple, which stated that the embryos would be relinquished to the clinic in the event that the couple disputed over their disposition, controlled, thereby preventing the court from addressing the constitutional issue. 91 Like in Davis, the Court endorsed a rule that favored a weighing of the parties interests, and that ordinarily the party wishing to avoid procreation should prevail. The Court also noted that agreements entered into at the time of IVF would be enforceable, subject to the right of either party to change his or her mind about disposition of the embryos up the point of use or destruction. 92 Thus, the party seeking to avoid procreation, in this instance the wife, prevailed once again. In Litowitz v. Litowitz, 93 a woman who was already a mother before undergoing IVF, wished to use frozen embryos created with her ex-husband s sperm and donor eggs for 87 Id. 88 Id. at Id. at Id. at Id. at Id P.3d. 261 (Wash. 2002).

17 implantation in a surrogate mother. 94 The ex-husband sought to have the embryos donated to another couple. 95 The Court completely avoided the real underlying issue by adopting a strict contractual analysis in disposing of the case. 96 It decided to honor the couple s agreement with the clinic which stated that the clinic not store the embryos for more than five years. 97 As a result, the Court ordered the embryos to be destroyed, thereby depriving both the ex-wife and husband of their use. 98 Although neither party was awarded control, the Court nevertheless adhered to the principal that no use of embryos can be made without the consent of both parties. In Re Marriage of Arthur Lee Witten III and Tamera Jean Witten 99 involved yet another dispute about the disposition of frozen embryos between a husband and wife. 100 According to their contract with the hospital, it was to store the embryos until the occurrence of certain events, which included the written authorization of both husband and wife. 101 When the husband refused to give his consent, the wife sought to have the embryos implanted anyway. The Court decided the case on principals of contract law, stating that since the parties could not agree on the disposition of the embryos, there could be no use of them until they reach a mutual agreement Id. 95 Id. 96 Id. at Id. 98 Id N.W.2d 768 (Iowa 2003). 100 Id. 101 Id. 102 Id.

18 Until then, the party who opposed destruction would be responsible for storage fees. 103 Again, this case demonstrates courts unwillingness to force procreation against a person s will. In Denmark, France, Greece, the Netherlands and Switzerland, the right of either party to freely withdraw consent at any time prior to implantation is expressly provided for through legislation. 104 Similarly, Belgium, Finland and Iceland allow either party to withdraw consent before implantation as a matter of law or practice. 105 In addition to the case law and legislation in favor of the party wishing to avoid procreation, other basic legal principals such as causation also support the argument that no one should ever be forced to procreate. C. Arguments in Favor of Mr. Johnston Although Ms. Evan s legal theory is that the U.K. s enactment of a statute that allowed Mr. Johnston to withdraw his consent violated her right to respect for private and family life, her gripe is essentially with Mr. Johnston. But for Mr. Johnston s withdrawal of consent, Ms. Evans would potentially bear a genetically-related child. Here, Mr. Johnston s omission, i.e. failure to give consent, is the cause of Ms. Evan s complaint. However, Mr. Johnston has not committed any affirmative act that caused Ms. Evans to forego the opportunity to bear a child. The fact that he happens to be in a position that would allow Ms. Evans to bear a child does not ipso facto make him the cause of her inability to do so. Similarly, if an innocent bystander were to watch as his neighbor s house burned to the ground and did nothing to prevent it, the fact that the bystander was in a position to stop the fire does not make him the actual cause. Although the 103 Id. 104 Evans, Eur. Ct. H.R. 2 (2007). 105 Id.

19 neighbor s conduct in this example would be considered morally repugnant, policy reasons preclude us from making him culpable for the fire in the absence of some affirmative act. Mr. Johnston owes Ms. Evans no more a duty to give his genetic material than does the bystander to save the burning house. The question is not whether Mr. Johnston should give his genetic material, but rather whether he has a legal duty to do so. Lastly, Mr. Johnston conditioned his consent to give his genetic material on retaining the right to revoke it at any time, and thus owed Ms. Evans nothing more once it was revoked. In addition to case law, public policy precludes Ms. Evans from forcing Mr. Johnston from becoming a parent against his will. In the United States and United Kingdom, courts consistently refuse to enforce contracts that bind an individual to enter into a future familial relationship. In both the U.S. and U.K., surrogacy contracts are generally unenforceable as contrary to public policy. 106 In the U.S., promises to marry are also against public policy and void as unenforceable. 107 The U.S. also refuses to enforce contracts requiring individuals to marry. 108 The general prohibition on familial relationship contracts expresses a policy that individuals shall not be compelled to enter into intimate family relationships, and that the law shall not be used as a mechanism for forcing such relationships when they are not desired. This 106 See R. R. v. M. H., 689 N.E.2d 790 (1998); Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); Doe v. Attorney General, 487 N.W.2d. 484 (Mich. Ct. App., 1992); Mass. Gen. Laws ch (2007); Surrogacy Arrangements Act 1985, Ch. 49, 1-2 (Eng.); In Re Mr. and Mrs. X, EWHC 157 (2002); Briody v. St. Helen s and Knowsley Health Authority, 2 FCR 13 (2000). 107 See MICH. COMP. LAWS (2007); Mass. Gen. Laws ch A (2007); IND. CODE (2007); FLA. STAT (2007); DEL. CODE ANN. tit (2007); CONN. GEN. STAT b (2007); ALA. CODE (2007); COLO. REV. STAT (2007). 108 Capazzoli v. Holzwasser, 490 N.E.2d 420 (Mass., 1986).

20 policy is grounded in the notion that respect for liberty and privacy requires that individuals be accorded the freedom to decide whether to enter into a family relationship. 109 Like the above examples, promises to provide one s genetic material for the purpose of procreating via an IVF procedure are against public policy. These types of promises are similar to the other familial relationship contracts that have consistently been struck down by the U.S. and U.K. 110 In fact, the case for rendering these types of promises void is stronger than any of the above examples, as the consequences and ramifications of enforcing them are much greater. Indeed, forced parenthood has potential life-long financial, psychological and social consequences. The enforcement of these types of promises would create a very dangerous slippery slope. If a man s promise to participate in an IVF procedure with a woman were to be enforceable in the face of his withdrawn consent, then there would be nothing to stop a woman, for example, from enforcing a man s promise to conceive naturally, or vice versa. Surely our society would not allow a person to contractually bind another into having sexual relations with him or her for the purpose of procreating. If our society would not tolerate natural forced procreation, then why should it tolerate artificial forced procreation? The enforcement of familial relationship contracts, such as those precluding an IVF participant from withdrawing consent would undoubtedly open up the floodgates for absurd results such as the ones mentioned above. Thus, since the enforcement of promises to participate in IVF procedures violates principals of sound public policy and common sense, they should not be enforced, and either party should be free to withdraw its consent at any time prior to implantation. 109 See Commonwealth v. Stowell, 449 N.E.2d 357 (Mass., 1983). 110 See A.Z. v. B.Z, 725 N.E.2d 1051 (Mass., 2000); Doe v. Attorney General, 487 N.W.2d 484 (Mich. Ct. App., 1992); Briody v. St. Helen s and Knowsley Health Authority, 2 FCR 13 (2000); Re C; Application by Mr. and Mrs. X under S 30 of the Human Fertilization and Embryology Act 1990, EWHC 157 (Fam) (2002).

21 D. Legal Support against the ECHR s Decision One country that does not follow the majority approach in resolving IVF disputes is Israel. 111 In Nachmani, an Israeli couple underwent IVF and contracted with a surrogate to bear their child because the wife was unable to carry one to term. 112 The wife then had her last 11 eggs fertilized with the husband s sperm before eventually separating. 113 Before the embryos could be implanted into the wife, the husband revoked his consent to have them implanted. 114 The Court ruled in favor of the wife, finding that her interests and lack of alternatives to achieve genetic parenthood outweighed those of the husband. 115 In Hungary, in the absence of an agreement to the contrary, the woman is entitled to proceed with the IVF treatment notwithstanding the death or divorce of her partner. 116 In Spain, the only circumstance under which a man is allowed to revoke his consent to an IVF procedure is when he is married and living with the woman. 117 In Germany and Italy, neither party can withdraw consent after the eggs have been fertilized. 118 Thus, if a German or Italian citizen wishes to implant the embryo without the consent of the woman, he can. E. Arguments in Favor of Ms. Evans 111 Nachmani v. Nachmani, 50(4) PD 661 Isr. 112 Id. 113 Id. 114 Id. 115 Id. 116 Evans, Eur. Ct. H.R. 12 (2007). 117 Id. 118 Id.

22 Similar to Nachmani, Ms. Evans has no other alternatives to achieve genetic parenthood, while Mr. Johnston does. The consequences of destroying the embryos are far greater for Ms. Evans than for Mr. Johnston, as he will be free to achieve genetic parenthood without the embryos, while Ms. Evans will not. Since the harm of depriving Ms. Evans of a geneticallyrelated child may very well outweigh the burden placed upon Mr. Johnston as a result of forcing him to become a father, Ms. Evans has strong grounds upon which to argue that the Court should have ruled differently. Although Mr. Johnston has a strong argument for claiming that he owed no duty to Ms. Evans, and was therefore not the cause of her failure to bear a child, Ms. Evans likewise has a strong argument for claiming that he did in fact owe her a duty, and thus had no right to revoke his consent. Ordinarily, a person owes no duty to another unless he assumes one. However, once that duty is assumed, it usually cannot be revoked. Here, Mr. Johnston arguably did assume a duty to give Ms. Evans his genetic material when he agreed to do so by contract. Ms. Evans justifiably relied on this agreement, thereby causing her to forbear from pursuing alternate means of procuring a child. Mr. Johnston was also well informed that Ms. Evans would have no other means of bearing a genetically-related child once her eggs were fertilized with his sperm. In fact, Mr. Johnston encouraged Ms. Evans to fertilize all thirteen of her eggs with his sperm, rather than storing them while unfertilized. If Mr. Johnston had not encouraged Ms. Evans to fertilize her eggs with his sperm, she would have been able to store them unfertilized, and had an opportunity to find an alternate donor at some later time. It could also be argued that the point at which Mr. Johnston should have been estopped from revoking his consent was the date that the eggs were fertilized, and six embryos were created. From that point on, Mr. Johnston was no longer in control of his sperm, as the embryos

23 were the joint product of both Ms. Evans and Mr. Johnston s genetic material. Thus, the act of destroying the embryos also destroys Ms. Evan s eggs, which, in the absence of being fertilized with his sperm, Mr. Johnston has no legal right to do. Although Ms. Evans has several compelling arguments, it is unclear whether any of them could justify the type of burden and injustice that Mr. Johnston would have suffered had he been forced to procreate against his will. And while Mr. Johnston is partly responsible for causing Ms. Evans to miss her opportunity to bear a genetically related child, his punishment should not be forced parenthood. F. Moral, Social & Ethical Considerations a. Arguments in Favor of Mr. Johnston The above cases demonstrate a general consensus among courts of various jurisdictions to adhere to basic fundamental principals of free will and personal autonomy. While none of these cases were binding on the ECHR s decision, the absence of any European case law made them quite compelling. Not only do most legal authorities support the right not to procreate, the moral and ethical considerations militate in favor of that right as well. Ms. Evans s right to procreate is not absolute. She cannot reasonably expect that simply because the Court recognizes a right as fundamental, that it gives her an unqualified right to exercise it at the expense of others. A person might, for example, practice a religion that encourages the killing of those who do not practice it, thereby depriving victims of those killings of their fundamental right to life. While the right to freedom of religion in this example is fundamental, it is not absolute, and will not be recognized when weighed against a right that is considered more fundamental, the right to life. In this scenario, if we were to allow the right to

24 freedom of religion to trump the right to life, then the consequences would be deprivations of life to all that do not follow that religion. Whereas allowing the right to life to prevail against the right to free religion results not in death, but rather in an inconvenience to those that practice the religion in question. Thus, when weighing one fundamental right against another, we must consider the social and moral consequences of each. The right that has the greatest social and ethical ramifications should ordinarily yield to the other. The same is true with the right to procreate versus the right to not procreate. The social and moral ramifications of forcing a person to become a parent against his or her will is a result that society should never allow. If Ms. Evans had prevailed, Mr. Johnston would have been forced to become a parent against his will, a result that would have many profound and longterm consequences for him. First, forced parenthood is not in the best interests of the bastard child or society. These children will never have the privilege of having a genetically-related father to guide them in their upbringing through no fault of their own. It is unfair to the child to be brought into a world where his father is absent and unwilling to participate in his upbringing. As a result, these IVF babies would have an increased potential to suffer long-term psychological damage, such as abandonment issues and the like. Also, the unwilling father would be subject to pay child support for a child that he did not agree to bring into the world. Depending on the support order, these payments could be in the hundred-thousands or even millions over an eighteen-year period. In addition to the financial burden that the child would impose upon the unwilling parent, the father would potentially suffer social stigma and psychological harm associated with having a child out of wedlock. This could affect a single man s ability to attract a desirable mate or even marry, as some women may reject a man with children as a candidate for marriage. Many unwilling parents could also face conflicts with their religious beliefs as a result

25 of having a child out of wedlock, as many religions frown upon those who have children out of wedlock. b. Arguments in Favor of Ms. Evans While the possible consequences of bearing a child without the consent of both parents are profound, the consequences of denying a woman the opportunity to bear a genetically related child are great as well. In this particular case, Ms. Evan s right to decide to have a genetically related child may indeed weigh heavier than Mr. Johnston s right to decide not to become a father. As with all women in IVF procedures, Ms. Evans was much more physically and emotionally involved than Mr. Johnston. Indeed, Ms. Evans was subjected to a series hormone shots and had her eggs extracted through a painful and uncomfortable procedure, whereas Mr. Johnston simply had to donate a small sample of his sperm without undergoing any painful shots or other uncomfortable medical procedures. When weighing the moral, social and ethical issues on both sides, it is clear that both parties have strong and valid arguments. However, the nature of this type of issue makes it such that only one side can win. And while the denial of Ms. Evan s right to conceive a genetically related child is certainly very tragic, it would be a much greater injustice to force Mr. Johnston to procreate against his will. IV. THE UNITED STATES SHOULD ADOPT A RULE SIMILAR TO THE HFEA a. A Bright-Lined Rule is the Fairest Solution It would be unfair and nearly impossible to arbitrarily choose one person s fundamental right over another s. Implementing a rule that would involve a weighing of both rights would

26 also be unworkable, as it would be too arbitrary and subjective, and would result in inconsistent adjudications. A judge would be free to arbitrarily accord more weight to the interest which he or she felt was more important at the time, and thereby deny a fundamental right to the person whom he or she feels has an inferior interest. Such a result should not be allowed, as judges are in no better position to determine whose right is more fundamental than are the litigants themselves. Since there is no workable legal standard for determining whose right is more fundamental, the only sensible way to resolve controversies such as this one is to implement a bright-lined rule, similar to that of the HFEA that allows either party to withdraw consent at any time prior to implantation. A bright-lined rule for resolving IVF controversies is the only fair way to deal with the issue. While a bright-lined rule is usually not the fairest or most effective way of dealing with most legal issues, in this particular area it is. The reason a bright-lined rule is fair in this particular situation is because it creates certainty and predictability in a highly sensitive and underdeveloped area of law. Also, it prevents arbitrary decisions based upon the predilections of the court at the time. Lastly, a bright-lined rule takes away all arbitrariness and inconsistency that is inherent in a balancing of interests test. Aside from inconsistency and arbitrariness, a case-by-case weighing of interests would be especially unfair to men who are parties to IVF procedures, as a court is much more likely to force a man to procreate against his will, rather than forcing a woman to. Also, if a case-by-case weighing of interests were allowed, a man could conceivably force a woman to bear a child against her will. Certainly no reasonable person would agree that such a result should be tolerated. Thus, if a woman should not be forced to have a child against her will, then why should a man? Some advocates of the weighing of interests rule may argue that forcing a woman

27 to bear a child against her will is distinguishable because she has to physically carry the child for nine months and give birth to it, whereas a man does not. While this may be true, this still does not justify the singling out of men who are parties to IVF procedures by subjecting them to the possible ramifications of forced fatherhood, especially when they condition the implantation of the embryo on their continued consent. b. Constitutional Considerations In order to determine the feasibility of passing a U.S. law similar to the HFEA, we must first examine several different constitutional issues. First, we must determine whether men share the same fundamental right not to procreate that women enjoy. 119 This is important because whether a man has a fundamental right not to procreate will determine the level of scrutiny a law will receive when it infringes upon that right. The Supreme Court has held that laws that infringe upon fundamental rights must meet the strict scrutiny standard; namely that the government may only infringe upon a fundamental right when necessary to achieve a compelling government interest. 120 If it is determined that men do not have a fundamental right not to procreate, then a bright-lined rule allowing them to withdraw consent would likely be unconstitutional because their purported right to not procreate would not justify the deprivation of a woman s wellestablished fundamental right to procreate, and thus not meet the strict scrutiny standard. 121 If it is determined that men do indeed have a fundamental right not to procreate, we must next determine whether Congress would have the power to enact a law regulating IVF 119 Roe v. Wade, 410 U.S. 113 (1973). 120 Zablocki v. Redhail, 434 U.S. 374 (1978). 121 See Stanley v. Illinois, 405 U.S. 645 (1972); Skinner v. Oklahoma, 316 U.S. 535 (1942).

28 procedures through its most likely source of power, the power to tax and spend for the general welfare. If Congress would not have the power to enact laws regulating IVF procedures, then such laws would only be possible through state legislation pursuant to the Tenth Amendment. 122 There are two types of fundamental rights, textual and non-textual. 123 Textual rights are those enumerated in the Constitution, such as certain portions of the Bill of Rights. Conversely, non-textual rights are those that are not expressly enumerated in the Constitution, but are nevertheless deemed to be fundamental because they are deeply rooted in our nation s history and tradition, and involve a fundamental liberty interest. 124 The right to procreate falls in the latter category, and was recognized by Skinner v. Oklahoma. 125 The issue in Skinner was the constitutionality of an Oklahoma statute that mandated sterilization of habitual criminals. The Court not only held that the statute was unconstitutional, but that procreation was a fundamental right that could only be infringed upon a showing that it was necessary to achieve a compelling government interest. 126 Ever since Skinner, the Court has continued to recognize a fundamental right to procreate. 127 In addition to establishing the right to procreate, the Court has also held that women have the right not to procreate. 128 What is not as clear though is whether men enjoy that same right. In 122 The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively 123 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 817 (Geoffrey C. Hazard, ed., Aspen Publishers 2005) 124 Moore v. City of East Cleveland, 431 U.S. 493, 503 (1977) U.S. 535 (1942). 126 Id. 127 Stanley v. Illinois, 405 U.S. 645 (1972). 128 Roe v. Wade, 410 U.S. 113 (1973).

29 what is quite possibly the most famous case in American history, Roe v. Wade established that women have a right to an abortion. 129 While Planned Parenthood v. Casey subsequently overruled portions of Roe and changed the standard for regulating this right, Roe s basic holding that women have a right not to procreate remains the same. Since Roe and Casey dealt strictly with the issue of abortion, it precluded the Court from expressly giving men the same basic right not to procreate. However, although the Court has not yet had the occasion to expressly grant men the right to not procreate, the policy and reasoning behind other cases such as Roe and Casey strongly support this notion. The Supreme Court has recognized a right to refrain from procreating for both men and women as early as 1965 in Griswold v. Connecticut. 130 In Griswold, the Court addressed the constitutionality of a law that prohibited the use of contraceptives for the purpose of preventing conception. The Court struck down the Connecticut statute as unconstitutional, holding that it was a violation of a fundamental right to privacy. 131 Thus, the Court not only established that a right to refrain from procreating did indeed exist, but that it was fundamental as well. 132 Relying on Griswold, Mr. Johnston can argue that a law allowing both parties to an IVF procedure to retain control over the decision to procreate is consistent with its underlying policy. Like Griswold, the policy behind a proposed law that would mirror the HFEA is to allow both parties to an IVF procedure to retain full control over their private affairs, including the choice of whether to bear or beget a child. Thus, the underlying policy of Griswold is consistent with the 129 Id U.S. 479 (1965). 131 Id. 132 Id.